- Voice of San Diego - https://www.voiceofsandiego.org -

San Diego Unified Improperly Withheld Emails in Marne Foster Scandal

San Diego Unified illegally withheld emails from the public regarding former school board trustee Marne Foster.

Last year, Voice of San Diego published a series of stories [1] that led to a criminal conviction and ultimately unseated Foster.

But some of the facts involved in the case never saw the light of day. So, Voice of San Diego sued for the emails – and won.

In March, a Superior Court judge ruled in VOSD’s favor that San Diego Unified had improperly withheld emails between district staff, school board members and Superintendent Cindy Marten. The district claimed those emails were shielded by a provision of state law that protects records of individuals involved in the district’s decision-making process.

But a judge found that exception didn’t apply as the district contended. By law, the district will have to pay for the cost of VOSD’s attorney, Felix Tinkov [2], who sued the district to retrieve them.

The emails themselves solidify facts that VOSD previously reported. And they shed new light on the way San Diego Unified kept emails and documents hidden from the public’s view while one of its school board members was under investigation.

Days after a district official told School of Creative and Performing Arts principal Mitzi Lizarraga she couldn’t return to the school, parents, students and alumni began flooding district officials with questions, the recently released emails show.

But instead of telling parents that Marten had made the decision to remove the Lizarraga for poor performance – as she later argued in a written memo [3] – or that Lizarraga’s removal was partly the result a dispute between her and school board trustee Marne Foster, as she later admitted [4], Marten and district staff told parents that Lizarraga was simply off campus addressing “urgent matters.”

Public agencies must disclose emails and documents to journalists and members of the public who request them under the terms of the California Public Records Act [5]. Certain documents and records are exempt from disclosure. A public agency does not have to provide information like medical or student records, which are protected by federal privacy laws, for example.

Also exempt are conversations between public employees and their attorneys – which would include additional emails VOSD unsuccessfully sought – because they are protected by attorney-client privileges.

Public agencies can also generally withhold records and conversations wherein public employees deliberate over policy. If the public had insight into these private conversations, the thinking goes, it would have a chilling effect on officials’ ability to candidly discuss problems and potential solutions.

But the recently released emails show district officials used that exemption not to protect their decision-making about policies – but to protect their conversations as they crafted a message misdirecting the public as to why Lizarraga was removed as principal [6] in June 2014.

Citing the provision of state law that protects employees’ decision-making processes, the district unlawfully withheld those records from VOSD then fought in court to keep them hidden from public view.

Donna Frye, past president of Californians Aware, which advocates for greater government transparency, said the law does not allow for agencies to withhold information simply because it does not want the information to be made public.

“The deliberative process exemption allows decision-makers the ability to have a certain amount of privacy when engaging in basic discussions. It’s supposed to protect the process by which decisions are made. If, however, it’s just to prevent them from being embarrassed, that’s not a proper use of this exemption. I don’t think the exemption can or should be used to say, ‘Oh, golly, I think this information might embarrass us. Let’s not release it,’” Frye said.

The entire ordeal addressed in the new batch of emails dates back to tension between Foster, whose son attended SCPA, and Lizarraga, who served as SCPA’s principal for seven years. As the 2014 school year came to a close, Lizarraga and Foster had a dispute over whether Foster’s son could attend prom and end-of-the year festivities.

Days before the school was set to host its graduation ceremony, Lizarraga was abruptly removed as principal and barred from attending the ceremony. Almost immediately, parents and alumni flooded Marten and school board members with emails expressing alarm at her departure.

By then, many had heard that Lizarraga would not return the following year and that Foster’s son had been overheard on a field trip telling other students that his mom got the principal fired.

“Many kids were upset that they weren’t able to hear [Lizarraga’s] words of encouragement and say goodbye for the summer. I am very upset at the ridiculous rumors stating that a student’s mother/board member got her fired?? How does a student know any Board business?” one SCPA parent and alum wanted to know.

Another parent, who heard the same news, wrote to Marten: “My eldest is now graduating from (SCPA). It is an exciting time for all of us; however I was surprised and dismayed to learn news that a senior student at (SCPA) whose mother is a SDUSD Board Member shared with fellow students ‘his mom got the principal fired’ during Grad Nite which was last night at Disneyland…I don’t know if there’s any truth to the child’s claim but know that such words have upset many students on the eve of their Graduation,” the parent wrote.

At the time, the only news parents received was a vague statement from school staff. “Principal Mitzi Lizarraga has been off campus addressing some urgent personal matters,” it said.

It did not resolve parents’ questions. They continued to send emails to Marten and school board members. On June 20, school officials delivered the following message to parents through robocall:

“This is the San Diego Unified School District calling. We have become aware of rumors and speculation in the SCPA community and want to offer a clarification. There is no truth to the rumor that SCPA Principal Mitzi Lizarraga has been fired. She is on personal leave attending to urgent matters. We hope this puts rumors to rest.”

We know now that message was misleading. While it was true that Lizarraga had not been fired, Marten removed Lizarraga as principal and told her she could not return. Lizarraga was on leave, but she later told us district officials made the decision on her behalf.