The City of San Diego paid more than $576,000 since 2010 for violating the state’s public records law.
According to data obtained by NBC 7 Investigates, in the last nine years the city has been sued for withholding public documents 23 times - two cases were filed by the same plaintiff over the same issue and three cases are still pending.
In 11 of the cases, a judge found that the city violated the state’s public records laws. Some plaintiffs in other cases settled and agreed to drop the case whereas for the remaining cases a judge ruled in favor of the city.
The $576,494 in court payouts do not include amounts the city spent to pay outside attorneys nor does it indicate the number of staff hours used to fight the lawsuits.
Last month, San Diego’s City Attorney Mara Elliott teamed up with State Senator Ben Hueso in an effort to overhaul the California Public Records Act. Elliott justified Senate Bill 615 as a way to prevent the city from fighting frivolous lawsuits and save thousands of dollars for homeless services and sidewalk repair.
But government transparency groups, including the San Diego Pro Chapter of the Society of Professional Journalists, argue the legislation would have taken away the public’s ability to legally confront government agencies that are refusing to release records.
The largest single payout was paid to property owner Ponani Sukamar for $158,000. According to court documents, Sukamar’s attorneys had submitted a request for public documents before filing the lawsuit. The city turned over some, but not all documents. It was not until Sukamar’s attorneys filed a lawsuit that the remaining hundreds of documents were turned over.
In a March 3 editorial in the Times of San Diego, Elliott used Sukamar’s case as an example for the need to reform the state’s open records law, writing that the law as it is currently written punishes municipalities for what were simple mistakes. [LINK: https://timesofsandiego.com/opinion/2019/03/03/senate-bill-615-will-streamline-california-citizens-access-to-public-records/]
“If just one sheet of paper is inadvertently overlooked by any one of the dozens of city employees who are asked to search for records, it can lead to an expensive judgment against taxpayers,” wrote Elliott, ignoring the fact that a judge in Sukamar’s case had found the city had failed to turn over 146 documents in that case.
Added Elliott, “No excuses, no explanations, are allowed. That no-excuses rule was created in a recent case that cost taxpayers $158,000. Following a diligent search, the city had provided hundreds of records, but an innocent error was made. The lawyer who discovered the mistake got paid $158,000 in fees — money that could have gone to streets and sidewalks, parks and libraries.”
In a message from the City Attorney’s Office to NBC 7, a spokesperson said another issue with the law is plaintiffs are allowed to recover costs but nothing is awarded to the city if a judge deems a public records lawsuit as frivolous.
But one local attorney says the number of judgments against the city shows that there is nothing frivolous about these types of cases. Attorney, and mayoral candidate, Cory Briggs has been awarded $257,429.75 since 2010 and has filed ten of the 23 cases, three of which are currently pending.
"As court rulings have shown time and again, the only thing frivolous about lawsuits over the disclosure of public records has been the city attorney's basis for not turning over the records in the first place. If the city attorney wants to see the biggest culprit in driving up litigation costs for taxpayers, she should look in the mirror."
Last week, amid mounting criticism, State Senator Hueso abruptly withdrew Senate Bill 615.