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So to Speak podcast transcript: Stonewalling by the University of California

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Chris Maltby: This episode we turn our attention to the California Public Records Act and UC System schools. The Foundation for Individual Rights and Education sued the University of California Los Angeles after it failed to produce documents in a 2018 CPRA request. Kelly Aviles, a California attorney who has success in defending plaintiff’s rights of access to government records, represented FIRE in that lawsuit. Here she is explaining the basics of CPRA.

Kelly Aviles: My name is Kelly Aviles and I’m an attorney that specializes in Public Records Act litigation. The California Public Records Act is basically that a legal guarantee of the public’s rights to be able to access records pertaining to, uh, how the government does business. Any record that a government agency creates, maintains, uses is all a public record, subject to disclosure. Anything relating to official duties definitely is a public record.

Chris: Open access to public records is a cornerstone of American democracy. Such access is central to monitoring public officials, evaluating government operations, and protecting against secret government activities. [crosstalk 00:01:14] Public universities like UCLA are bound by law to comply with records requests under CPRA

Steven Mnuchin: Which again I just want to emphasize, the first time we’ve ever had any agreement like this. An enforceable –

Chris: Former Treasury Secretary Mnuchin was invited to UCLA to give a speech. The date of the event was February 26th, 2018.

Female Speaker: Steve Mnuchin

Steven Mnuchin: I have a couple of priorities as, as Treasury Secretary. Can you at least raise your hand when you hiss so at least I can get the general direction of where these things are coming from? Okay, thank you and –

Chris: Protestors disrupted his speech and some were arrested. What followed was a lengthy open records request to find out who was trying to hide footage of the event. And why it’d take so long to get documents from UC schools.

Greg Greubel: My name is Greg Harold Greubel. I am a staff attorney and one of the litigators at FIRE. So, there was a video taken of Steven Mnuchin’s speech which included images of the protestors at the speech. The video of Steve Mnuchin’s speech was known to the public because of a Wall Street Journal article, I believe. We were aware of the, of that, at FIRE. And one of our attorneys, Adam Steinbaugh filed a request under the California Public Records Act, for the video.

Chris: UCLA resisted calls, initially, to make the video of the Mnuchin event public. FIRE was interested in this video. And why the host of the event, Director of UCLA’s Burkle Center for International Relations, Kal Raustiala was seemingly withholding its release. On March 2nd, 2018, FIRE requested the video and documents from UCLA relating to the release of the video.

Kelly Aviles: Anybody who wants information can make a request to any government agency. They are supposed to then conduct a search. Or, pull the specific record that you’re looking for. And produce it without any kind of unreasonable delays.

Greg Greubel: So, after our initial request on March 9th, UCLA responded saying that they would produce the video of the Mnuchin speech because FIRE was not the only organization that submitted a request for that video. There were several organizations that did so. But that was not a complete response to our request. Our request also asked for correspondence between Mnuchin’s office and Kal’s office, to find out if Mnuchin’s office had directed them not to release the video. Which we believe is what happened. So, we were waiting on those documents.

Kelly Aviles: Under the Public Records Act, they’re supposed to respond to requests for copies of records within 10 days. Under exceptional circumstances, they can extend the time to respond by 14 days. The law specifies that no substantive response, identifying records, and what’s going to be produced, what’s going to be withheld, and why, will take longer than that initial 10 days. Plus, the additional 14 days, uh, in exceptional circumstances.

Greg Greubel: There’s no part of the law that says you need to try to produce documents within this time frame. It says, you must produce documents within this time frame. Somehow UCLA has interpreted that to mean that they can give themselves extensions whenever they please.

Chris: UCLA took much longer than 24 days to produce the records FIRE requested. A disappointing result, given the University’s positive work with FIRE on its speech codes, in its earning FIRE’s highest Green Light rating.

Greg Greubel: So, we were waiting on those documents, which were the ones we were really interested in, right? Like we don’t care as much about the video as-as much about is the Federal Government trying to keep a video from the public, right? That’s a little bit more of a concerning thing. On March 26th, we received a correspondence from UCLA saying that they would produce all of our documents by June 29th. On June 29th, we received a letter from them saying that they would respond to our records request by August 31st. Then on August 31st, we received a letter from them saying that they would respond to our request on November 30th. Then November 30th comes around and they said that they would respond to our request by February 28th. And then February 28th comes around and we are told that we’re not going to get our documents until April 30th. At that point we filed our lawsuit.

Chris: FIRE filed a lawsuit on March 29th, 2019. Over a year after first requesting documents relating to the March 2018 Mnuchin event. UCLA moved quickly to finally hand over the requested documents. How many documents? Thirteen pages of emails between Kal Raustiala and the Deputy Director for the Burkle Center.

Greg Greubel: So, the 13 pages of emails were mostly between Kal and another individual that worked for UCLA. And what they were discussing in those emails was getting consent from government officials to post videos of them. Now the implication of that, is clearly that there seems to be some problem with Secretary Mnuchin’s office in getting his consent to release the videos. Because in here they’re saying that we need to get the consent from government officials in writing, in the future, before these events, so we don’t have any issues. And there is sort of a back and forth between Kal and this individual that works for him, saying how can we get this figured out in the future, so it’s not a problem. Um, so, I think from those emails you clearly see that they are concerned about getting government officials consent to release videos of them when they have an event at UCLA.

Chris: It ended up taking more than 13 months to produce 13 pages.

Kelly Aviles: There is no reason that it took that long. I-I-it’s-it’s a lack of prioritization of the public’s right of access.

Greg Greubel: These emails, they were all from Kal’s office. Based on my review of things, there wasn’t sort of a comprehensive search here. They weren’t knocking down doors asking people for documents. They were just not producing the documents that they had. We know from, specifically from the Daily Bruin, which is the student newspaper at UCLA, that they don’t just say they’re not going to respond, right? They know that they can’t do that. They can’t just say we’re not responding. But they – the lead that they can say that they’re just going to indefinitely extend-extend their deadlines to these requests. And that’s exactly what happened here. So, we knew it was a bigger problem than just us.

Chris: The Daily Bruin was such a frequent subject of stonewalling it created a data base on its website listing unfulfilled records requests to the University. For instance, in 2013 the newspaper requested communications from UCLA Health, the University’s academic medical center and officials in the country of Malawi. The documents came more than a year later. In 2016, when the Daily Bruin requested records pertaining to UCLA Health employees, the office delayed the request. And didn’t bother to give an update for when the request would be filled. It currently has two outstanding requests to the University, that are eight months old. And there are past examples of requests taking up to four years.

Its editorial board wrote, “that it’s painfully obvious the University has a pervasive culture of stonewalling.” It also isn’t the only independent student newspaper getting stonewalled by UC administrators. Ethan Coston, a former student journalist at the University of California San Diego, has experience waiting long stretches of time for records at his school.

Ethan Coston: I’m a recent UCSD graduate. I graduated in June, this past June, 2020. At UC San Diego I was part of the Triton, uh, the independent student newspaper. I started as a staff writer my second year. For public records requests for UC San Diego, I’ve always had some difficulty, um, nothing, even simple requests aren’t usually completed in a timely manner. So, for example, in, I think it was February or March, like public records requested all of the chancellor’s schedules for a month. So, it’s literally just screenshots of his Google Calendar for a month. And it took them around six months, I think, to give me the records. It was over summer. And that’s when I found out it was just screenshots of Google Calendars. And there’s no reason it should have taken that long.

Chris: This is attorney Kelly Aviles again.

Kelly Aviles: I can’t tell you the number of calls that I get about people encountering problems obtaining basic records from the UC. And, uh, you know not just a particular campus but we see this pattern from variety of campuses on a variety of types of records.

Chris: Back to Ethan.

Ethan Coston: So, I had first, I had heard about an incident at UC San Diego. So, I got curious and that’s when I actually learned how to use public records. Like public records requested this specific investigation by name of the person who was found guilty and later resigned. In October of 2018, I PRA’d emails between the person who was responsible for administering discipline and the person who was found guilty of sexual misconduct. And the University refused to disclose those. Um, and so, I had decided strategically to request those emails. I had also been told that there was a conflict of interest because the person found guilty and the person administering discipline were friends outside of work.

Um, and I thought that could have brought up a potential conflict of interest as well. And it was the year I had reached out to the Student Press Law Center during this time. And they had told me, they’re like, “No, the University should be giving you these records.” Then I reached out to the First Amendment Coalition for legal help. They connected me to lawyers. And then that’s how I found legal representation. This is my first lawsuit. We ended up filing a year after the first request.

Kelly Aviles: Your ultimate remedy if an agency doesn’t comply with the deadlines in the CPRA. If they don’t comply with turning over records they should, unfortunately your remedy is really limited to filing a lawsuit.

Chris: This is FIRE’s Greg Greubel again.

Greg Greubel: We do know that they upped their sort of activity, right? We got pushed to the top of the line. That’s what happens. It’s like you filed a lawsuit and this, you know, whatever que there is for how these people respond to these public records requests, you just get pushed up a little bit. Because you have more resources than Joe Shmoe, or a student, right? Let’s imagine this. If you’re a single student, you’re never going to get pushed up to the top of the list because you can’t get an attorney to file this kind of lawsuit for you, for money. You can’t get ‘em to do it to pay them, so you have to get it from a public interest organization like FIRE. But there aren’t that many out there.

And there aren’t that many that are you know looking to sign up to file lawsuits to get 13 pages of documents.

Chris: FIRE filed a lawsuit and got the requested documents a little faster. But UCLA didn’t think they did anything wrong.

Greg Greubel: I think the important thing to take away from this is, you need to watch what they say in court, right? So, for almost a year, UCLA said that they can’t violate this law. If they violated this law, that there’s nothing you can do about it. And then, we pushed them on it and pushed them on it and pushed them on it. And then they finally give us an offer judgement saying that they violated the law. That they delayed the request. They admitted that they did it.

Chris: FIRE won the lawsuit in October of 2020. Two years and seven months after the first records request.

Kelly Aviles: It took nearly a year of litigation, uh, they hired two law firms, spent who knows how much public money, uh, and finally ended up adm-admitting that they violated the law.

Greg Greubel: If the state is going to pass a law, they have to be able to implement it. So, go back, change this law. Amend it. Make it different. Or, give UCLA more resources.

Kelly Aviles: A lot of agencies struggle. But having this kind of, uh, pattern and practice where they, uh, will simply delay, kick the can down the road, over and over again, is really something that is the pattern that’s prevalent within the UC System. And it’s to be expected when you make a request, unfortunately of the UC. And when somebody finally files a lawsuit, they simply run up the public bill by hiring an attorney and spending money to fight those lawsuits. And that’s money that could have gone back in the system to help respond to requests in the first place.

Chris: Here’s former student journalist Ethan Coston again.

Ethan Coston: I think it’s important that we receive records quickly because transparency is important. We need, uh, citizens deserve to know what other public entities, the government entities, are doing. Um, and receiving quick records allows us as journalists to, um, write about what they’re doing. We can’t do a lot of reporting without these records. Uh, and a lot of times delaying production of rec-records, or refusing to produce records just delays the public’s knowledge of important information.

Greg Greubel: The UC System has not lived up to their responsibilities under this Act. It’s a systemic problem. The people that are supposed to be doing this work are telling us, in these documents, that they don’t have the resources to do it. That means the system needs to give these people that work for them, more resources to comply with the law.

Kelly Aviles: Everybody’s under budget constraints. Everybody’s under time constraints but the idea that complying with certain laws that you don’t really like, can just be thrown to the backburner. Or understaffed just because you don’t really want to produce the records after all. It’s not the way the, uh, the system was designed to work. And it really, uh, devalues the role of providing citizens information that valuable role in our democratic process. Really the Public Records Act is the guarantee of the public’s ability to participate in its government.