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June 20, 2018

The Data Chase (part 2): "Access to public records"

——Continued from "The Data Chase (part 1)——

When my friend Bill suggested we use the Freedom of Information Act (FOIA) to obtain the filming permit data, I was annoyed. We had no funds for a lawyer and life is too short to become one. For no other reason to prove the FOIA was simply too much trouble, I googled around for some quick answers that would put the matter to rest.

It didn't work out that way. A two-minute read of Wikipedia turned up this inspiring excerpt from a 1986 California Supreme Court :

I got a pang of civic duty that I would later regret. If we could get the data, if we identified a source of revenue that helped the disadvantage, maybe we could do some good.

I called a friend who had recently retired from the Department of Justice.

"The first thing you need to know," she said, "the FOIA doesn't apply to California. It's just for federal agencies. You want the California Public Records Act. The second thing you need to know... go to the the LA Law Library. "The librarians are very helpful."

So they were. I was soon pouring over Terry Franke's invaluable reference Public Records and Private Information in California. f you should find yourself in the unfortunate position of needing access to public records in California, get this book!

The right of Californians to access public records goes back 150 years. The first statute ensuring access to public records was passed in 1872. An update was passed in 1953, but that bill was vetoed by Earl Warren. It took another 15 years before 1968, Ronald Reagan signed the current statute into law.

The California Public Records Act (CPRA) begins with this:
"In enacting this chapter, the Legislature...declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state."
(CPRA section 6250)
In addition to guaranteeing every Californian the right to access state, county and city public records, the CPRA also provides provisions that compel the government to help satisfy a request.

Here's a paraphrase what the law provides:
When a member of the public requests a public record, the public agency...shall do all of the following:
(1) Assist the public identify records and information that are responsive to the request
(2) Describe the information technology and physical location in which the records exist
(3) Provide suggestions for overcoming any practical basis for denying access"
The CPRA does stipulate that a public agency may deny access to requested records are proprietary or impact privacy. However, if a CPRA request is denied, a citizen may appeal the denial to the Court for a writ of mandamus that forces the agency to provide the records. If the appeal succeeds, the agency is responsible for all legal costs.

There's teeth in the CPRA.

Were FilmL.A.'s permits public records? We did not know for certain.

I returned to Google for additional help. I found two California non-profits whose missions were to help citizens obtain public records: the First Amendment Coalition (FAC) and CalAware. I started with FAC. They offer an 'inquiry hotline. I sent an inquiry to FAC asking if FilmL.A. and their data were subject to the CPRA. To my amazement, the answer came quickly.
From what I understand, FilmLA was created by the city and county to perform the government function of approving filming permits. If that is the case then FilmLA should be subject to the CPRA and would have to comply with a records request, including any requirements described below to, for example, provide records to you in the format in which they exist. Also, the CPRA requires the agency to assist you in making a focused and effective request that reasonably describes identifiable records.

from an associate at FAC's general counsel, Brian Cave LLP
I forwarded the FAC email to Steve. "Great news," he replied. "We need legal advice."

I returned to the FAC site. They offer a slate of attorneys who specialize in first amendment and public access issues. I emailed three firms in the LA area. We received a promising reply from the LA firm of Jassy, Vick and Carolan (JVC). We sent along some documentation and arranged a call.
They were reassuring. They speculated we had a strong case. It seemed likely we would be successful.

With some very helpful guidance from JVC, we drafted a CPRA letters to FilmLA and LA City with supporting citations from the statute and a reminder that, under the CPRA, they are required to help us obtain the records. The letter was carefully worded. We wanted to ensure that FilmL.A. would not misunderstand this request. On July 21st, we sent the letters and crossed our fingers.

Four days later, we received the following response from Paul Audley, President of FilmL.A.
"We do not have a report in the format you described in your CPRA request. However, permit information is available electronically through our Online Permit System ."
Excerpt from letter signed by Paul Audley, President of FilmL.A.
While Audley's response removed any doubt that the FilmL.A. permits were public records, his reply was disappointing. The assertion that they they did not have a report in the format we requested seemed disingenuous. We had already received data from them in the very form we had requested. Perhaps Mr. Audley wasn't aware of the capabilities of his organization. But, the recommendation that we get the data from their Online Permit System (OPS) was less than helpful.

For our purpose, the OPS had two significant drawbacks. The FilmL.A. OPS only allows a user to download one permit file at a time. OPS held over 130,000 permits. There was a bigger problem. OPS stores permit data as pdf documents 1. A pdf document is like a sheet of paper, the information cannot be loaded in to statistic program. To do the analysis, we would have to be copy out the data from each separate permit into a form, like a spreadsheet, that could be loaded into an analysis application. Audley's offer to get the data from OPS seemed like no offer at all.

We sought advice from JVC and drafted another CPRA letter with a reminder that had already sent us the data in the form we requested. To ensure that Audley knew our claim wasn't a fabrication, we cited the February letter we had received from David Howard, Assistant Chief Executive Officer for LA County. "At our request, FiImLA has undertaken a review of their database and has provided responsive documentation in an electronic format..." We included a link to the spreadsheets in the hope that we could eliminate any doubt that FilmL.A. had the data we requested.

We send our letter on September 5, 2017. On September 11, we received the following reply.
"The records you refer to from January 2017 were "ad hoc" reports....They were not standard reports or records that are produced by Film L.A. for our client jurisdictions. Many of the data fields listed in the request from January could not be retrieved after many hours of work by our IT staff. Under the California Public Records Act, we a re not required to create reports that are not generated by us...We do not have the customized reports you requested."
Excerpt from letter signed by Paul Audley, President of FilmL.A.
We puzzled over Audley's response. We knew that the data existed because the OPS generated the pdf documents from the underlying electronic data. Was the denial based on a willful ignorance? Were FilmL.A.'s technical capabilities really that limited? Without doubt the data existed in some electronic form that did not require customization. If nothing else, the database backup files would have the data we were requesting. Surely, FilmL.A. backed up the OPS database — no competent IT organization would fail to make backups of the organization's data.

We once again sought JVC's advice. They were frank. The writing was on the wall. While it appeared that a back-up file might be subject to a CPRA request, it had become clear to JVC that FilmL.A. was not willing to help. In order to succeed, we would have to go to court. But JVC felt our case might not be clear cut. It could be difficult to convince a court that the OPS data did not meet the intent of the CPRA. Given those circumstances, JVC felt they were no longer able to provide us with guidance. We thanked JVC profusely for all that they had done. That had been very generous. We had been more-than-a-little lucky to capture their attention.

We were back where we started.

I was mulling over our options when I received an email from my friend Mary who had been supportive of our project. Mary is an executive at foundation that supports low-cost housing projects. Mary had been meeting Doug Baron, the Manager of the Office of Economic Development and Homelessness in LA County's CEO office. The County's Film Liaison had just been moved into Mr. Baron's Division.

"I think you should meet Doug," she said. "I told him I had a friend working on a project based on filming permit data. He was aware of you. 'You mean that crackpot from JPL?' I told him you were no crackpot, but a serious person that he should meet."

With Mary's help, Steve and I met Mr. Baron on November 1st. Gary Smith, the new Film Liaison for LA County attended the meeting. Both men were very hospitable We discussed our project, the potential we saw and our efforts to date. They seemed genuinely interested. We explained why we believed FilmL.A. held the data in the form we requested. We asked for their help. As we left they agreed to make inquiries on our behalf.

We heard nothing for a couple weeks. Then, just before Thanksgiving, we received a terse note from Gary Smith. "After double checking, we are not able to provide you with the data you seek in the format you've requested." After the warm reception at that November 1st meeting, the note struck us as dismissive. We had hoped to hear more than a summary denial. It wasn't to be.

Just before the Christmas break, I met Steve for lunch to discuss next steps. It had been almost a year since we began the project and we appeared to be out of options.

"Time to give up the ghost or try to find another attorney?" I asked.

"We should try," he said.

It was a good thing, because our luck was about to change.

—— To be continued ——

1Portable Document Format (pdf) is an internal standard for representing documents in an electronic format.

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