Mailbag: Producing records earlier would have saved the city legal costs

On Sept. 25, Barbara Venezia wrote a column about a Public Records Act lawsuit filed by a member of the public against the city of Newport Beach for allegedly failing to search for and produce records concerning the city’s relationship with a nonprofit corporation, the Newport Beach Sister City Assn., and for allegedly failing to explain why certain records are missing.

I represent the man who filed that lawsuit. As discussed in Ms. Venezia’s column, a hearing was held on Sept. 28. I wrote this letter because I believe the public would be interested in knowing the outcome of that hearing.

At the heart of the matter, in my opinion, is that the city appears to have repeatedly used public resources to provide free services to a private corporation without informing the public or allowing public comment. It appears the city gave NBSCA approximately $100,000 without receiving grant applications, adhering to the city’s review and approval process, or abiding by the city’s criteria for determining eligibility.

The Records Act states, “Government employees do not have the right to decide what is good for the public to know and what is not good for the public to know.” The city must, within two weeks of a request, produce requested records, absent unusual circumstances. Yet, for over a year, the city has been fighting tooth and nail against production and refusing to say whether missing records ever existed, were lost, or were destroyed.

According to Ms. Venezia, the city has so far spent an estimated $200,000 in litigating its position of silence. If the city had answered my client’s few simple inquiries, as mandated by law, there would have been no cost.

After litigation commenced, the city produced PDFs containing hundreds of pages in a disorganized mess. The city’s production included partial email trails that indicate important communications are missing.

At the Sept. 28 hearing, the judge agreed that the city had not been forthcoming with its explanations of missing records, and its disheveled production, trickled out over the course of eight months, “raises suspicions in the court’s mind as to what kind of search was conducted initially.”

The judge ordered the city to organize its disheveled production. When the city complained of the expense, the judge stated that “it would have been cheaper for the city to have produced in an organized manner rather than now finding themselves in court ...”

The court also ordered the city to address the missing documents by indicating whether they “ever existed, presently exist,” and if so, to “state where the documents are located.” For any record that no longer exists, the judge ordered the city to explain “why it doesn’t exist any longer.” The judge gave the city 90 days to comply. It was a good day for the public.

Melinda M. Luthin

Corona del Mar

The writer is an attorney representing resident Kent Moore in his lawsuit against the city of Newport Beach.