A Public Records Act request by Arcata Citizens for Responsible Housing recently resulted in a 369-page document dump revealing close coordination between the university and AMCAL Equities/Coleraine Capital Group. Revelatory as it was, the document included multiple redacted passages and pages, including key attachments.
FOR IMMEDIATE RELEASE
June 1, 2018
Via Electronic and U.S. Mail
Ms. Alison N. Kleaver
The California State University
Office of General Counsel
401 Golden Shore, 4th Floor
Long Beach, CA 90802-4201
Email: [email protected]
Re: Renewed and March 13, 2018 California Public Records Act Request to Humboldt State University’s for Writings Relating to Village Student Housing Project at the Craftsman’s Mall Property
Ms. Alison Kleaver:
This letter responds to your May 18, 2018 letter (attached) regarding our California Public Records Act (CPRA) request to Humboldt State University (“HSU”) for public documents in the above-referenced matter submitted on behalf of our client Arcata Citizens for Responsible Housing (“ACRH”). As addressed herein, HSU’s decision to withhold documents and information addressing HSU’s plans to enter into an affiliation agreement or master lease with the Village Student Housing Project (“project”) developer to avoid the payment of property taxes and California Prevailing Wage laws for the project—as well as HSU’s secret participation in promoting the project—is deeply disturbing, especially in light of the purpose of the CPRA. On behalf of ACRH, we demand that HSU disclose all writings—without redactions—relating to the project that were shared with project developer or anyone outside of HSU as required by CPRA. (Gov. Code, § 6254.5; see also Newark Unified School District v. Superior Court (2015) 239 Cal.App.4th 33, 903 [“The Legislature's purpose in enacting section 6254.5, then, was to prevent government officials from manipulating the PRA exemptions by asserting them against some members of the public while waiving them as to others.”] We further demand that HSU disclose all writings responsive to our original request through the date of the letter, including but not limited to any documents relating to the HSU’s compliance with the California Environmental Quality Act (“CEQA”). These documents must be disclosed to the public and the City of Arcata immediately so the public and City are aware of HSU’s plans for the project (e.g., converting 220+ single rooms to doubles) and the environmental impacts of HSU’s proposed plans for the project. We understand that the City will be considering approval of the project on June 7, 2018 and would request that you disclose this information before the City’s meeting so the City is not required to delay consideration of the project.
As the California Supreme Court recently explained, the CPRA and the California Constitution do not allow HSU to conceal its plans with the developer relating to the project from public view, but rather provide the public with a right of access to this information:
Openness in government is essential to the functioning of a democracy. Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.
(Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 164, emphasis added [internal quotes and citations omitted]). HSU’s statements to the public and press that: “This is a private developer building this project. This project has nothing to do with HSU.” -- while hiding documents and information revealing its negotiations with the project developer to convert single units and studios to doubles and avoid the payment of property taxes and California Prevailing Wages is antithetical to the purpose of the CPRA and CEQA. We explain below why each of the objections in your letter do not allow HSU to keep information relating to HSU’s plans and involvement in the project a secret.
As an initial matter, HSU did not provide us with any of the attachments referenced in the emails produced. We request that access to these attachments be provided immediately. If, for some reason, HSU continues to withhold these attachments, we request HSU provide us with a written explanation of the claimed justification for withholding the attachments, as required by Government Code section 6255. (See Gov. Code, § 6255, subd. (a); International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Super. Ct. (2007) 42 Cal.4th 319, 329.) Please also include the factual basis for asserting the exemption. We also encourage HSU to consider the Supreme Court’s approach to interpretation of the CRPA in your decision whether to continue to withhold these documents:
“A statute, court rule, or other authority … shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access.” (Cal. Const., art. I, § 3, subd. (b)(2), italics added.) “‘Given the strong public policy of the people's right to information concerning the people's business (Gov. Code, § 6250), and the constitutional mandate to construe statutes limiting the right of access narrowly (Cal. Const., art. I, § 3, subd. (b)(2)), “all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.”
(City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 617.)
With respect to the emails produced, you claim the redacted portions of various emails are exempt from disclosure under the CPRA as preliminary drafts or notes (see Gov. Code, § 6254, subd. (c)) or under the “deliberative process” privilege (Gov. Code, § 6255). You did not, however, provided us with a factual basis for asserting these exemptions, which based on our review the redacted e-mails appear dubious for the reasons discussed below. Moreover, we are unable to ascertain the basis for asserting such exemptions for the documents that have been entirely withheld by HSU.
For example, the redacted portions of emails appear in the middle of email correspondence between HSU staff and representatives from the developer, AMCAL, or other outside parties representing Coleraine Capital. To the extent HSU has disclosed these purportedly “exempt” communications to any member of the public, including but not limited to AMCAL or Coleraine Capital, such disclosure constitutes a waiver of the exemptions specified in Government Code sections 6254, 6254.7, or other similar provisions of law. (See Gov. Code, § 6254.5.) Once a record loses its exempt status and becomes available for public inspection—as appears to be the case here—Government Code section 6253, subdivision (a), endows every citizen with a right to inspect it. By force of these provisions, records are completely public or completely confidential. It is well-established precedent that the CPRA denies HSU the power to pick and choose the recipients of disclosure. (Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 656.)
Moreover, as you are aware, the deliberative process privilege is only implicated where “the public interest in nondisclosure clearly outweighs the public interest in disclosure. (Cal. First Amendment Coalition v. Super. Ct. (1998) 67 Cal.App.4th 159, 172–173; see Gov. Code, § 6255.) As the public agency claiming the privilege, HSU has the burden to establish the conditions which create the privilege, i.e., “to explain why the public’s interest in nondisclosure in this case ‘clearly outweighs’ the public interest in disclosure. (Ibid.) Merely reciting the policy behind the privilege, as HSU does in its letter, is insufficient. (See Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 307.)
Finally, we request that you provide us any documents relating to HSU’s compliance with CEQA. While we believe such documents are within the scope of our original request, no such documentation has been provided. Moreover, the limited documents provided to date appear to show that HSU has made a commitment to the project. As you are aware, HSU “has no discretion to define approval so as to make its commitment to a project precede the required preparation of an EIR.” (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 132; see also id. at p. 130 [“If postapproval environmental review were allowed, EIR’s would likely become nothing more than post hoc rationalizations to support action already taken.” (Ibid.) Nor can HSU tier off the City’s uncertified EIR. Not only does HSU’s commitment to the project precede the EIR, even if the EIR was certified and held to be adequate in a court of law, HSU documents disclosed to date demonstrate that HSU plans to dramatically increase the number of residents for the project:
11. We want to confirm that there are about 220 single rooms that could be converted to doubles. You also mentioned studios that could be made into doubles—how many?
(E-mail from Todd Larsen, HSU Associate Director of Business Operations, to David Moon of Coleraine Capital Group, dated January 9, 2018.)
Please note that if we are forced to resort to litigation to obtain the requested documents and the court finds that any public records, including the email attachments, have been improperly withheld or redacted, we will seek attorney fees pursuant to Government Code section 6259.
The Village Student Housing Project has quickly become a very controversial and divisive project within the community and therefore complete and transparent disclosure of HSU’s involvement in this project is in the best interest of the public. We look forward to receiving your response prior to the City’s June 7, 2018 public hearing on the project. Please contact me if you have any questions.
Very truly yours,
Howard “Chip” Wilkins III
cc: Mayor Sofia Pereira, City of Arcata ([email protected])
Vice-Mayor Brett Watson, City of Arcata ([email protected])
Councilmember Susan Ornelas, City of Arcata ([email protected])
Councilmember Paul Pitino, City of Arcata ([email protected])
Councilmember Michael Winkler, City of Arcata ([email protected])