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California HSR: Violating the public records act: deception or incompetence?

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Attempting to get information from the High-Speed Rail Authority (HSR) is like pulling teeth since they often delay or refuse to give information when it may be detrimental to the project.

The California Public Records Act requires state agencies to disclose records and to assist the public in finding the information they need. There are very few, narrowly defined exceptions and it is guaranteed by the state constitution.

But with the High-Speed Rail Authority, whether they release the information or not depends on who you are and what you are asking for. Here are various responses one can expect when asking for information from the rail authority.

· It’s draft, you can’t have it

· Narrow down your request, it’s too broad

· We need time to find it (the more delayed the better)

· We have to mail it to you, files are too big

· It’s a trade secret

· Client/Attorney Privilege

· You get some documents but the attachments are missing

· You can’t have the record because the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.

· We need clarification, which ends up taking a lot of time.

An actual example: They have asked the requestor what does the word “communication” means.

· It doesn’t exist

· The dream: here you go- here’s what you asked for.

Californians Advocating Responsible Rail Design (CARRD)

Apparently CARRD won the prize for the most public records requests last year. As of last summer the Authority claimed they made 34 requests. After a complaint by CARRD to the Authority Board, Jeff Morales, CEO and ex Parsons Brinckerhoff executive, defended his staff and accused them of harassing the Authority. He told the HSR board that “The Authority board by any objective standards has gone beyond most programs in its transparency.”

What Morales says is flatly not true. The High-Speed Rail Agency is not a transparent agency. Either it does not understand the Public Records Act or deliberately attempts to limit or slow the access to public documents. One wonders if is it ignorance, incompetence or deception or a combination of those reasons that prevents them from complying with the law. It is possible the board may be unaware of the shenanigans of the high-speed rail staff under CEO Jeff Morales’ leadership.

Californians Advocating Responsible Rail Design (CARRD) is a non-partisan organization that advocates disclosure and transparency for the public. They explained at a board meeting that most of their public records requests were a direct result of the documents not being posted on the Authority’s website.

For example, progress reports by the Regional Consultants, Program Management Team, and oversight team are not available on the HSR Authority’s site. In the past, CARRD’s requests have uncovered invaluable information concerning ridership data, spending of state funds and critical engineering reports, which they made available to the public themselves by posting the documents on their own website, www.calhsr.com.

How the Authority doesn’t follow the disclosure laws:

Winner of top excuses the Authority uses when it denies or substantially delays a Public Records Request is the unlawful categorization of materials as a draft.

According to the First Amendment group, who works with journalists, here are the following guidelines:

1. It’s not a draft if actions were taken on the final document

2. If you are retaining the information, it cannot be considered a draft

3. Public interest must be considered if it is a draft. Is withholding the information more damaging than releasing it.

4. In the case of a bone fide draft, you could only legally withhold recommendations not factual findings.

The Draft Geotechnical and Seismic Hazard Report, was delivered to Parsons Brinckerhoff on April 19th 2013 and had very troubling information concerning the land subsidence issue in the Central Valley. (Subsidence means the land is sinking, and in the Central Valley it is sinking at an alarming rate of up to 12 inches per year.) The problem is if construction occurs in such an area it could require an over-built infrastructure for safety reasons, which would equal big construction dollars. See the recent article written about the subject: http://www.capradio.org/13488

The Authority staff member in charge of public records requests received CARRD’s request and wrote in an interoffice email on May 8, 2013, “If we have a final [Geotechnical and Seismic Hazard Report], I will send it to [Rita Wespi of CARRD] but if it only exists in draft form, I will not send it to her.” This person clearly does not understand when a draft can or can’t be released. In most cases you MUST release a draft. This particular draft was eventually released to an attorney who requested it well after the CARRD request and later, September 15th, the CARRD group received the report, 4 months after the original request.

After reading about the subsidence problems in the report, Douglas Carstens, an attorney from a firm with the reputation as one of the best legal groups specializing in environmental irregularities in the state, came forward at the October board meeting. He requested that the Authority recirculate the Fresno to Bakersfield Environmental Impact Report due to substantial changes related to the disclosure of subsidence. This spells the possibility of more legal trouble for the rail project. http://www.hanfordsentinel.com/news/local/kings-opens-new-front-in-hsr-legal-war/article_9db0658e-35ad-11e3-9157-9bb2963f4.html

An example of another excuse: We need a lot more time.

In unusual circumstances, the time limit of 10 days prescribed in the law may be extended by written notice by the head of the agency or his or her designee. The extension must set forth the reasons for the extension and the date on which a determination is expected to be dispatched.

The Authority routinely utilizes the extension exception, which I might add is toward the end of the 10-day period and rarely explains the reason for the extension. This includes monthly progress reports that have been completed and should be at their fingertips. Here are some examples of the reports they routinely delay:

· Regional Consultants and Program Managements reports, which are produced on a monthly basis. The authors give a closer look, a more honest look of what is happening on the project. CARRD published them on a regular basis and post them on their website.

The Authority has questioned the manner in which CARRD requested or sought information. In an email exchange with board member Lynn Schenk, Jeff Morales claimed that CARRD’s behavior in getting public records “has occasionally crossed the line into being abusive of staff.” Ms. Schenk suggested that Morales might open a file with the Attorney General’s office “because of the number of requests and abuse of staff.”

At the November board meeting, Rita Wespi, a co-founder of CARRD, spoke about the agency’s non-transparency and vehemently denied any improprieties. Wespi came prepared with copies of the email records of all their requests and offered to sit with staff and review them. She maintained that even when there was a lot of back and forth, CARRD was never discourteous.

Dan Richard said at the meeting, I have never seen anyone from our staff saying, “let’s deliberately slow down.” He blames the delays on more activity now. “We’ll take a look at this since we aspire to being a transparent public agency especially with $6 billion dollars of public monies going through it. “

Comment: In a review of the CARRD communications with the Authority, no evidence of nastiness was found. Because a person is persistent in asking for the information does not make them abusive.

See the public records testimony at the November 7th board meeting. See minute marker: 101:40 to 106:47 for Rita Wespi’s comments and Dan Richard’s exchange with her. http://stateofcalifornia.granicus.com/MediaPlayer.php?publish_id=eb09c151-9dd4-1031-bb96-2398900c8889

T.Y. Lin Oversight contract ends:

In one the reports that CARRD received, it was learned that T.Y. Lin’s contract lapsed this past June. On the project since 2009, it was their job to be the watchdog consultant and report on the entire project. There was no recent discussion of their pending departure at any board meeting. It was only found out through a public records request. It was disclosed by the Authority personnel that T.Y. Lin was no longer in the employ of the Authority as Program Oversight Manager. The Authority staff no longer produces the reports that T.Y. Lin was doing.

In a stranger twist, it was announced that T.Y. Lin would take over as regional consultant for the Fresno to Bakersfield segment. The HSR board sees no conflict in this award, explaining that the T.Y. Lin contracted in June 2012. However, the contract actually ended in June 2013, contradicting HSRA staff attorney Tom Fellenz.

After the following segment, you’ll understand how this is especially troubling.

Hunting for Parsons Brinckerhoff personnel on the project

In a public records request, I asked how many others were in the very strange category of appearing to be “on staff” at the authority yet on staff with a consulting company. Example, the title Deputy Director is used by engineer John Popoff and Gregg Albright both employees of Parson’s Brinckerhoff but they double as HSR Authority management. They have an HSR title of Deputy Director. And of course the agency is headed by former Parsons Brinckerhoff executive Jeff Morales. As one state senator once commented “you can’t tell who’s an employee and who’s a consultant.” And that’s the point of attempting to get this information.

Since I couldn’t get a straight answer, I asked for resumes or employment applications of each person on staff permanently or temporarily but when I received the documents neither Popoff nor Albright ‘s information showed up. The Authority advised they weren’t temporary or permanent employees. They were taking a definition very literally when clearly knew what I was looking for and did not want to cooperate and provide that information. The law says, the public agency is under obligation to assist the public in finding what they are looking for, not do everything they cannot to fulfill the request.

Per internal emails, (by the way obtained by an attorney), the Authority was concerned about my request so they went to the Attorney General’s office. They thought their staff could be targeted personally if they released employment applications or resumes. The AG’s office said that the Rail Authority had to comply and so after redacting personal information such as contact info and SS numbers, they released it.

Bringing this back full circle, without TY Lin overseeing the project, the result is PB supervising itself by either former or actively employed PB people. In case you haven’t realized it, the fox is certainly guarding the hen house.

Recent communications requests:

Recent requests for email communication have netted very little information. It seems that there is a real effort not to put information in writing. Here are examples of emails: “Call me at this number, we need to talk.” “Check your voicemail just left you a message.” “Can you get back with me about the information I requested last Tuesday.”

The problem is while they are attempting to hide information from the public and news agencies, they are also not documenting what they are doing unless they are deliberately not providing those reports. Phone calls and text messages are not documentable but perhaps that’s the point. Even with standard reporting some of the critical elements are missing. In a recent request for standard FRA progress reports required by the federal government, crucial attachments are missing. The Authority hasn’t refused to bring forth the attachments, they say they’re still working on it. That was weeks ago, I’m still waiting.

Here’s another example of secretive communication dated September 27, 2013, between the CEO Jeff Morales and Deputy Administrator of the FRA, Karen Hedlund, which raises more questions than provides answers. Morales wrote, “The board, with Joe’s [Szabo?] support, took an action that could undo what we’ve been working toward. We need to talk, understand what’s going on. Please let me know when you can talk.” No idea if he is talking about the HSR Authority Board or the Surface Transportation Board or it's something else entirely but he is clearly disturbed.

Website re-shuffle:

And every once in a while, twice in recent memory, the Authority changed its website address under the guise of a remodel, which effectively breaks all links to crucial data in articles, reports and yes legal documents. In some cases, documents go missing. Here’s Joe Vranich’s famous youtube given prior to the vote on HSR in 2008, in which he declares at mm 6:27 that documents disappeared from the website. The whole statement is less than 8 minutes and deserves listening.

Bottom Line:

This organization is at times blatantly in violation of the Public Records Act. If the public cannot get the HSR Authority to release the information they request, what choices does the public have? Will the Attorney General’s office help?

Can DOJ help me obtain records from a state or local government agency that has denied my request?

The answer is no, the Department of Justice (DOJ) generally cannot assist you in retrieving records from another agency. Go to a private attorney they advise.

So if going to court is the only route to get the information, what does it take to hire an attorney? If you find one willing to do so, a strong, experienced attorney with a great track record, it could cost $10’s of thousands to file a lawsuit. Most attorneys will not take your case on contingency and most won’t take it at all. Sometimes there is reticence in filing against the state.

If you are dead sure you are entitled to the information and you know they have it, you will get a ruling requiring that they give you the information and will be awarded legal fees. But how many people want to risk that kind of personal money and sue the state of California?

In the end it could be the Authority is looking at the odds. It’s as though they’re weighing the damage and timing of the release of information verses the likelihood that you will hire an attorney. The Agency does pay much closer attention if you hire an attorney to send in a “threat letter” which states “give me the information or else” or when the request originates from an attorney or an organization big enough to have immediate access to legal counsel.

Bottom Line: All people have the right to information, whether a journalist or a member of the public, and if an agency is trying hard to hide it, there’s a reason for it. Those who make public records requests are doing a great public service and it’s the only way to find out what’s really going on.

As Ray Carlson, a prominent Central Valley attorney says, “ If we had open government all this information would be readily available; the difficulty in getting in, clouds their integrity.”

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