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In 2018, Voice of San Diego sued San Diego Unified School District for a perceived failure to comply with the California Public Records Act. The case has had many twists and turns since then, and is still moving through the courts.
In some instances, the district has taken months to produce records that other large districts produced in a matter of days. In other cases, it has taken years for records to be turned over. And in one surprising example, Voice of San Diego requested records our reporters knew existed. Instead of turning those records over, district officials told us – repeatedly – that they didn’t exist. Then when a more official body asked for the same records, district officials suddenly managed to find and produce them.
These practices have continued long after the lawsuit was filed. One of our reporters recently received records she requested from the district on April 5, 2017. Four years ago.
The California’s Public Records Act exists so that citizens can see how their government functions. It allows them to request emails and documents held by government agencies to understand if those agencies are actually working in their interest. Voice of San Diego’s lawyer, Felix Tinkov, has argued that San Diego Unified has failed to comply with the law in a number of ways – making it impossible for members of the public to hold the district accountable.
The district has acknowledged in legal filings in the case that it sometimes takes more than a year for it to produce public records, but it has also argued that it has not acted unlawfully and that delays are a result of a lack of resources and personnel.
We checked in with Tinkov to provide some answers about where this effort stands. This interview has been lightly edited for length and clarity.
We filed a lawsuit in 2018 challenging the district’s failure to comply with the California Public Records Act in a variety of aspects. We were seeking to have the court order the district to promptly produce records and if they didn’t produce the records, accurately describe why they choose not to do so. We also initiated it because the district at that time had threatened to delete hundreds of millions of emails. Superintendent Cindy Marten unilaterally decided to have a six-month window in which emails would be kept and automatically deleted thereafter. The district then changed to a one-year timeline [for retaining emails]. We reached out to district’s counsel and said a one-year timeline did not comply with the law, which requires a two-year period during which records should be kept. (Some emails should be kept longer, depending on content.) When that failed to garner a response, we decided to file suit. The district agreed to a settlement in 2019 in which the district agreed for a period of five years that they would minimally hold emails for a period of two years before deleting them.
Since then the parties have attempted to meet and discuss a number of times but have not been able to reach any sort of agreement on how the district might comply with the Public Records Act in a manner that’s responsive to the public. And more recently, with Voice of San Diego’s discovery of the district’s alleged practices of its executive staff permanently deleting emails and using Google Docs to correspond with one another and then wiping that information away so that there would be no record of their conversations, we have sought relief from courts. We were denied that relief until discovery might provide evidence of these various activities.
Currently Voice is seeking to perform discovery [a process that allows Voice to ask the district for its internal documents that might prove its case] to uncover further facts in support of these allegations. And we expect that the district will comply or will be forced by the court to compel them to do so.
Typically, the school district failed to comply with the Public Records Act in a variety of ways from failing to search for records altogether to withholding records for months and years and sometimes not producing them at all. There is no other public agency in my experience in doing this public records work over the past decade that comes close to the district’s failure to comply.
Ashly McGlone had filed her request for all records relating to alleged claims of sexual misconduct … She asked for them with all of the San Diego County school districts. I can’t remember how many there are. [There are 42.] San Diego Unified was the largest school district to respond and simultaneously produced the least number of cases relative to its student population, other than really small districts that produced none at all. It stands to reason that this is an indication the school district is withholding sexual misconduct records. And furthermore we know they have done so with respect to the Martin Teachworth case, in which we repeatedly worked over the course of a year to get records. There were multiple claims of sexual misconduct against him that we knew of. And we were given absolutely no records and in fact told there were no records of sexual misconduct or claims of that nature. Even though we knew they existed. At a certain point, the California Commission on Teacher Credentialing started investigating the claims against Mr. Teachworth. They forced San Diego Unified to divulge what information they had. And it turned out there were records. The district explained to us that the records were found in an abandoned file cabinet, in an abandoned office, stretching credulity.
Practically speaking, why we ended up taking this on is rather than improving, they seemed to be getting worse over time. Based on some common complaints from different community organizations or media like Voice or NBC 7 or the ACLU or CalAware or from individual members of the community like parents or parents of special education students or parents whose kids were claiming sexual misconduct or abuse – after hearing all that and seeing that the district is still not improving but continuing in a downward spiral, taking longer to respond or not respond at all or finding new ways to not have to do the things the Public Records Act requires; all that indicates to me that they don’t care. They’re not interested in following the law. They’re interested is seeing how far they can stretch this out. If no one steps in, it’s not going to get better – and may continue to get more awful.
We are seeking a few different remedies from the court. Namely, we are asking the court to direct the district to comply with the law in all manners spelled out in the Public Records Act. In addition, we are seeking injunctive relief, which means the court can direct the district in how it should specifically comply going forward. In other words, the court can say what the district can and cannot do in regards to the Public Records Act. We are also seeking declaratory relief. That would be a judgment from the court where they would find the district has failed to comply [with the law.] It could be specific or general but it tends to clarify specifically that the court has made a finding that the public agency has not complied with the law, so that there is no question as to that fact. And by doing so it will effectively permit the public to say in future litigation that yes, the district has failed to comply and use that as a basis to make further claims.
There can’t be a punitive judgment in this case. Under the Public Records Act, there is no right to economic damages. The only thing the Public Records Act affords is that if we are the prevailing party we may recover some or all of our costs or attorney fees in pursing this litigation for benefit of public.