San Diego Unified Official Admits to Not Following Public Records Act

Education

San Diego Unified Official Admits to Not Following Public Records Act

The district official tasked with finding and distributing documents in response to public records requests said in sworn testimony that the district often doesn’t identify whether it has disclosable records within the required 10-day window.

San Diego Unified Office SDUSD
The San Diego Unified School District headquarters / Photo by Adriana Heldiz

Jeffrey Day is a paralegal who oversees most of the public records requests that come through San Diego Unified School District. It’s part of his job to help ensure the district complies with the California Public Records Act.

The Public Records Act requires government bodies to hand over public documents to anyone who requests them – and promptly. When a person makes a request, it’s Day’s job to find and distribute the documents.

But not all of Day’s practices comply with the law, according to his testimony in an ongoing lawsuit filed by Voice of San Diego, and the opinion of some Public Records Act attorneys.

A key component of the law requires government bodies to identify whether they have any “disclosable” records within 10 days of receiving an initial request. But Day, during sworn testimony in a deposition, admitted the district frequently does not actually identify whether it has records within the 10-day window.

Government bodies are also supposed to respond to requesters to tell them whether they have any records within the 10-day window.

But Day said in some cases he doesn’t start the 10-day clock immediately if he receives a request while on vacation. He also said he doesn’t always respond within 10 days when the tenth day falls on a weekend or holiday.

“I’m shocked,” said Kelly Aviles, a public records attorney, sarcastically. “An agency has a practice that doesn’t comply with the public records law, is that what you’re telling me?”

It’s clear, Aviles said, that not identifying records within the 10-day window and not responding to requesters within the 10-day window are both violations of the Public Records Act.

David Snyder, a lawyer and executive director of the First Amendment Coalition, confirmed those practices violate the law.

Neither Day nor a district spokeswoman responded to a request for comment.

Voice of San Diego sued San Diego Unified School District in 2018 for repeated failures to comply with the Public Records Act. In some cases, the district was taking months or years to produce records that some agencies produced within days. The time it took to get records in some cases made their public interest value irrelevant.

The law requires that public records be produced “promptly.”

As part of the ongoing case, Day was deposed last month by VOSD’s attorney, Felix Tinkov.

Day explained he usually reaches out to relevant department heads when he first receives a records request.

“Would you say, more often than not, that you get a response back within 10 days?” asked Tinkov.

“Oh, I would say no,” replied Day.

Day said he does not receive any documents back within 10 days 95 percent of the time.

That, in and of itself, is a violation of the law, Aviles said. Agencies must identify records “in whole or in part,” she said, that are applicable to a person’s request. The government body must then tell the requester whether it will provide the documents and, if not, the reasons it may be withholding certain documents.

Some sensitive information, such as a minor’s name, must be redacted from a document, before it is provided to a member of the public.

It isn’t Day himself or the department heads who are violating the law, Aviles said. It’s San Diego Unified. Agencies need to train and inform their employees on how to follow state laws, she said.

During another part of the testimony, Tinkov and Day had a back and forth about the definition of promptness in the Public Records Act.

They specifically discussed a request by VOSD reporter Ashly McGlone that took four years for the district to begin to fulfill.

McGlone had asked for emails during a specific timeframe that contained certain keywords words related to the district’s budget. The search contained 27 keywords and kept crashing the district’s computer system, Day said. Eventually, he said, the IT department came up with a way to run the search.

Because the request was so difficult to fulfill, Day judged that it had been filled promptly, despite taking more than four years.

“Let me clear this up for you,” Aviles told me, “four years is not prompt.”

Current case law on what constitutes promptness is unfortunately murky, said Snyder.

“I wish there were a hard deadline on producing some records,” he said.

Tinkov and Day discussed another case, involving Martin Teachworth, a teacher who ultimately lost his teaching credential for sexual misconduct against students.

VOSD had requested records related to Teachworth and received nothing back – despite people close to the case producing records showing they did exist.

In 2019, four years after the first request, the district emailed VOSD to say that some documents had in fact turned up. It produced those documents in response to a subpoena from the state teacher credentialing commission – not in response to VOSD’s original request. The documents showed the district suspected Teachworth had committed criminal conduct against children but did not take any action against him.

The documents, officials told VOSD, had been found in a storage room.

Tinkov pressed Day on why the emails, at least, hadn’t been produced after the first request. Day didn’t have an answer.

“We ran that one into the ground,” he said. “We asked and re-asked and checked and rechecked and did searches and did all this stuff and didn’t come up with this stuff.”

Day said he was surprised that any records ever “popped up” at all.

During his testimony, Day also admitted to setting an out-of-office reply during some of his vacations that told people their request would not be treated as received until the day he returned.

The importance the public records law cannot be overstated, Snyder said.

“Government transparency is the lifeblood of a healthy democracy,” he said. “If we had to only rely on the government to tell us what it’s doing, we’d be living in an autocracy.”

Incidentally, last week, McGlone received more documents from Day as part of that same records request related to budget terms that Day said in his deposition had crashed the district’s system. The request was filed in 2016 – five years ago.

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