District Won’t Provide Documents

For the last five months, The Gazette has been requesting copies of documents from the Roseville Joint Union High School District about a complaint filed against the district by a Granite Bay High School parent.
   The district has resisted and fought The Gazette’s requests.
   But several experts, including a Sacramento attorney who represents professional newspapers in California, say the district is not in compliance with state law regarding access to public records, and the school district could be legally liable for its failure to comply.
   A complaint was filed last fall against a GBHS teacher and administrators on behalf of GBHS senior Carson Schmidley by his parents.

   The Gazette filed several requests with the district for a copy of the complaint. All the requests were eventually denied.
   Jim Ewert, an attorney for the California Newspaper Publishers Association in Sacramento, advises member newspapers about various laws that affect access to both public meetings and government-related information.
   According to Ewert, nearly any document pertaining to a state or local agency, such as a school or school district, is a publicly accessible document.
   “Under the Public Records Act, any document that is created, used or maintained by a state or local agency is presumed to be a publicly available document, unless there is an exemption in the law that allows the agency to withhold that document,” Ewert said.
   John Bowen, an adjunct professor of journalism at Kent State University in Ohio and the chairman of the national Journalism Education Association’s scholastic press rights commission, explained in an e-mail interview that obtaining documents is a relatively simple process – at least in theory.
   “One simply has to ask for them, being as precise as possible,” Bowen said. “Every citizen has a right to access of public documents. The agency might be able to charge a reasonable fee to cover copying and take a reasonable time to organize the materials, (but public documents generally must be made public).”
   In other words, any citizen has the right to view a public document.
   “Any member of the public (can obtain these documents),” Ewert said. “There is no age requirement. All you have to do is walk in and ask for it.”
   Bowen explained that, too often, public officials judge the validity of requests for public documents instead of simply complying.
   “(The) most common (reason for denial of a public records request) is the feeling that materials requested are not public documents and not available to the public,” Bowen said. “Also, (officials think) that documents can be denied unless the person can claim a ‘need to know.’  You do not have to explain why you want the documents.”
   Attorney and law professor Paul Nicholas Boylan explained in an e-mail interview that often, once someone faces resistance from a public agency, they assume they’re not entitled to the documents and back off.
   “Students face the same obstacles every ordinary citizen faces: ignorance of the law,” Boylan said. “Public agencies that want to keep information away from public scrutiny or examination take advantage of and depend on people – students or otherwise – not knowing their rights. They say no, and 90 percent of the time that’s all they have to do. No one questions the decision to say no.”
   In order to prevent agencies from using loopholes, the California Public Records Act clarifies what agencies can and cannot do to avoid supplying documents they wish to withhold.
   “The California Public Records Act forbids local agencies, including school districts, from taking advantage of mistakes people make when requesting public records,” Boylan said.
   Boylan also explained that the Act also requires agencies to aid requestors in clarifying their requests, in order to obtain the documents they seek.
   Some documents are exempt from the Public Records Act and cannot be obtained by the general public.
   “There are a whole host of statutes that describe categories of documents that may be withheld,” Ewert said. “For instance, if a document is generated by an attorney who is representing the client, (it) is considered an attorney-product document, and that document is not required by the school district to be disclosed, especially (when) it would harm the district’s ability to carry out litigation or negotiations.”
   According to Ewert, however, most government documents are generally supposed to be accessible to the public.
   “There are more documents that can be accessed than cannot be accessed,” Ewert said.
   Bowen said the illegal withholding of documents is not that unusual in the United States.
   “I have heard of plenty of instances (of documents being withheld illegally),” Bowen said. “The only (problem that) one my students, when I taught high school journalism, ran into was a librarian refusing to give us a list of teachers who used the Internet in the school library. She felt we did not have a right to that information. We filed a request with the principal and had the information within 20 minutes.”
   Bowen said any type of document is susceptible to being withheld illegally, but financial records are the most common.
   “Any time a local agency has something to hide, they will put up road blocks to stop anyone from discovering the truth,” Boylan said. “It can be for any or no good reason.  Lately, the most common dispute involves electronic records, such as e-mails.
  Boylan said he’s currently involved in litigation in which a client requested e-mails from a public agency. The agency agreed to comply, but only with hard-copy printouts of the e-mails. According to Boylan, the Public Records Act requires electronic records to be provided in the electronic format in which they are maintained, but public agencies don’t want to do that because documents in electronic format can be quickly and easily searched for specific terms.
   “E-mails in particular have what is known as ‘metadata’ attached to them,” Boylan said. “Metadata shows where an e-mail came from, where it was sent and even who may have altered it.  Secret messages – even photographs – can be hidden in metadata that doesn’t show on the e-mail message page.  This is the kind of thing public agencies don’t want to produce because they are afraid of what it might reveal.”
   The Gazette was seeking two types of documents in particular – a copy of the claim filed against the district by the Schmidley family and copies of e-mails between several faculty members and administrators pertaining to the claim.
   “Claims are considered disclosable documents under the Public Records Act,” Ewert said. “The Public Records Act requires the redaction of information that is exempt and also requires the district to disclose the remainders of the document.”
   In layman’s terms, the law requires the district to comply with The Gazette’s request for a copy of the formal claim, and there isn’t a whole lot of gray area except that the district could redact – or edit out – any nondisclosable information, Ewert said.
   E-mails are slightly more complicated, however.
   E-mails written by public school employees are accessible to the public because they are, in theory, owned by the school district. However, if they contain nondisclosable information, the e-mail is still disclosable, but the nondisclosable information can be redacted.
   “The agency would be required to redact, or black out, that information which is exempt from disclosure and provide the requestor with the remainder of the documents,” Ewert said. “If it contained confidential student information, then that information would be required to be redacted, and the remainder of the document would be required to be disclosed.”
   On The Gazette’s first attempt to obtain the Schmidley documents in January, an e-mail from Steve Williams, the district director of pupil personnel services, denied The Gazette access to both the claim and the e-mails. He argued that the Public Records Act did not apply.
   Williams, in his e-mail, said the law is nullified when the document is related to a particular identifiable student.
   Ewert said the option for an individual or organization whose records request is denied is simple – appeal or sue.
   In order to avoid litigation, The Gazette requested the documents a second time via letter, which cited court cases supporting The Gazette’s right to the documents.
   Ten days later, The Gazette received a letter from attorneys working for the district who noted that the district would require an additional 14 days to respond to the records request.
   Terry Filliman, the lawyer who wrote the letter informing The Gazette of the delay, declined to comment.
   The Gazette eventually received a letter from Ron Severson, the district assistant superintendent of personnel, who noted that all The Gazette’s requests for public records were denied.
   The letter included several arguments why the district believed The Gazette was not entitled to the documents.
   It said “the request is not specific enough for the district to understand.” It also said that “the public interest in withholding these documents clearly outweighs the public interest in disclosure” and that “the request is denied as it appears to seek access to records pertaining to pending and/or threatened litigation to which the district is a party.”
   Phillip Trujillo, whose law firm was cited in the letter written by Severson, declined to comment.
   Severson said he believes the district has always acted legally when it comes to Public Records Act requests.
   “To my knowledge (the district has never withheld documents illegally),” Severson said. “We tend to run these by our attorneys and follow their best legal advice.”
   Boylan, however, said he believes The Gazette was legally entitled to the requested documents.
   “(I) absolutely (believe the documents The Gazette requested were withheld illegally),” Boylan said. “I’ve read the request and the district’s responses.  (The Gazette) ask(ed) for e-mails. The district rejected your request on the grounds that the e-mails you are asking for are “student records” (that are) exempt.
   “That isn’t true. Those e-mails are public record within the reach of the (California Public Records Act).   The district is allowed to black out – or redact – private information within those e-mails, like student names or private phone numbers, but they have to produce the rest of the e-mail, including the metadata.”
   Ewert also said none of the reasons in the district’s letter warrant the denial of The Gazette’s requests.
   “Just to be clear, my understanding is the request was made for (copies of) a claim that was filed with the school district,” Ewert said. “That (kind of) claim has been determined by several courts and several attorney general opinions to be disclosable under the Public Records Act. (So if no documents were received, and there was no offer to redact information), then it would be in violation of the law.
   “You have a lawyer, on the record, saying that the district violated the law.”