Del Mar Union School District sued to release documents

By Marsha Sutton
Senior Education Writer

Del Mar parent and resident Michael Robertson filed a lawsuit against the Del Mar Union School District Aug. 8, charging the district with withholding public documents Robertson requested May 10 under the California Public Records Act.

Also named in the suit is DMUSD school board president Comischell Rodriguez, for allegedly not disclosing personal emails related to the CPRA request that were sent to and from Rodriguez’s private email accounts.

“Because Respondent Rodriguez possesses, maintains and controls records responsive to Petitioner’s requests that are not maintained in files located in Respondent District’s offices, Respondent Rodriguez is an indispensible part to this litigation and must be included as a respondent in order for Petitioner to obtain complete relief,” reads the suit.

Robertson submitted a CPRA request on May 10 for access to files, documents and records relating to contact from March 1, 2011 between employees and representatives of the DMUSD and the California Teachers Association, a statewide teachers union of which the Del Mar California Teachers Association is a member.

This request was later expanded to include communication among and between Rodriguez, DMUSD superintendent Jim Peabody, the DMCTA and its representatives, the CTA, and the California School Boards Association (CSBA).

Robertson’s Public Records request was triggered by a CTA-organized “Week of Action” held May 9 to 13. A resolution to support the Week of Action was passed by the DMUSD school board at its April 27 meeting.

Robertson objected to Peabody’s recorded, automated telephone call to all Del Mar parents asking for their support of the week’s activities, and to flyers produced by the CTA that were distributed to parents by Del Mar schools’ PTAs. The flyers asked parents to call or email legislators to urge them to back more money for schools.

Saying this was “clearly calling for political action which is in violation of California law,” Robertson criticized the flyers and the school district’s actions that he claims inappropriately supported the union’s mission.

A May 27 letter from the DMUSD in response to Robertson’s May 10 CPRA request provided three primary reasons for not fully complying, citing court cases to support each point.

First, the letter stated, “The district objects to the requests as they are vague, overbroad and burdensome.”

“That is typical legal babble,” Robertson said. “They pay an outside firm to just object on every possible grounds.” He contends there is nothing vague about his requests. “It’s a shame that they’re spending money on attorneys to block perfectly legitimate requests.”

The district’s letter also stated, “In addition, the district objects to your requests insofar as they seek any information unrelated to the conduct of the public’s business.”

In a May 27 letter back to the district, Robertson wrote, “How DMUSD is run and who they communicate with, and this includes with outside agencies, is the public’s business. My request is completely within that scope.”

The district, in its letter, offered a final objection: “The district further objects to your requests insofar as they seek records exempt from disclosure because the public interest in not disclosing the information clearly outweighs the public interest served by disclosure.”

Robertson responded to this by writing, “If you want to argue that pathetic excuse in court, I suppose it’s the district’s prerogative. But to spend money that should be used to educate children on attorneys to hide its interactions with the California Teachers Association seems like gross mismanagement to me.”

Peabody wrote back to Robertson, in a June 1 letter, saying he was disturbed by the “accusatory tone” of Robertson’s last correspondence, and asked for courtesy.

“Your negative commentary which, amongst other things, charges that the district ‘is hid[ing] documents,’ likens the district’s response to your request as a ‘pathetic excuse,’ and threatens litigation, is inaccurate and mistaken,” Peabody wrote.

Peabody said over 4,000 documents had to be reviewed, which he called a time-consuming process. “We have no interest in ‘hiding documents’ as you’ve charged, and no desire to engage in unnecessary litigation,” he wrote.

In a same-day reply, Robertson wrote, “I’m sorry you are offended by my harsh words, but to be clear I am accusing the district of hiding communication documents between the CTA and district employees. … After initially being met with cooperation and promises to search email repositories, I have since been stonewalled. Yes, my words will grow harsher and my actions will too, because as [a] citizen this is my only recourse.”

Patience worn thin
Pages of documents were then provided to Robertson, but they were unresponsive to his request, he said. A letter from the school district’s attorney on this case, Dan Shinoff of Stutz Artiano Shinoff & Holtz, said the district has cooperated fully.

“If you know of communications that are responsive to your CPRA requests and that the district has not produced, kindly identify them and the district will gladly produce the documents if it is in possession of them,” Shinoff wrote.

“This is not a game called ‘hide the document until a citizen knows it is in existence,’” Robertson replied. “The very purpose of the CPRA is to reveal documents that citizens do not have knowledge of.”

“My patience has worn thin,” Robertson wrote. “I have waited for many weeks and still get stonewalled by the district. It’s baffling behavior and it appears that the district is daring me to file a lawsuit to compel action.”

Subsequently, over 100 pages of emails were sent to Robertson. Although many of the pages pertained to the lunch program and other unrelated topics, emails directly related to Robertson’s requests were provided.

Still dissatisfied with what he said was a “woefully inadequate” release of requested material, Robertson blasted the district for what it did provide, saying the documents clearly show that the Week of Action campaign originated from the CTA.

“The school board was told what resolution to pass and all the literature came from CTA,” he said, adding that the all-call telephone script read by Peabody was also written by the CTA.

“When the administration and board simply become employees of the CTA who directs their actions, then the system becomes perverted and fails,” Robertson said.

Rodriguez, in an email to Peabody regarding Robertson’s complaints, wrote, “Surprising. We are not endorsing a candidate nor a party. We are doing our job to defend and be a part of the greater educational conversation.”

“My thoughts exactly,” Peabody responded.

No monetary compensation
Peabody had no comment on the lawsuit, saying as of Monday the district had not been served. Rodriguez did not respond to phone calls or emails for a comment.

Robertson, a technology entrepreneur who is the founder and former chief executive officer of the digital music company MP3.com, said he’s not seeking monetary compensation and only wants the documents released.

“This isn’t about getting money,” he said. “This is about making sure that the Del Mar school district is responsive to citizen requests, which it hasn’t been. I’ve wrestled with these guys for months.”

His complaint states, “Unless Petitioner is allowed access to the information he seeks, the public will be denied information prepared at public expense by public officials pertaining to the conduct of the public’s business, access to which is essential to scrutinize government.”

Robertson said the district has three weeks to respond to the lawsuit. “I’m puzzled why they haven’t turned over the documents already,” he said. “It’s baffling. For some reason Del Mar thinks they are above the law.”

Answering a query from this newspaper on this issue in May, Peabody said, “I don’t believe the district did anything wrong.”

“Thanks for hanging in there on this,” wrote Rodriguez to Peabody in an email obtained by Robertson. “You’re doing great. And you’re right. We did nothing wrong.”

Related posts:

  1. Del Mar school district’s delays frustrate businessman
  2. Del Mar Union School District trustees extend Peabody’s contract
  3. Opinion: Del Mar Union School District should stop using taxpayer-funded resources for politics
  4. Del Mar Union School District approves revised lunch RFP
  5. Del Mar Union School District moves toward healthier lunches

Short URL: http://www.delmartimes.net/?p=26653

Posted by Staff on Aug 24, 2011. Filed under News, Schools. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

4 Comments for “Del Mar Union School District sued to release documents”

  1. DXM

    My reading of the article above would suggest that Robertson is reaching for documents that probably dont exist. That is an alternate sxplanation for why he has not recieved what he thinks he is looking for. After all, to appease him the DMUSD appears to have provided several documents. They just don't contain a smoking gun, which could mean that no such gun exists.

    Whats more, the staff is bare bones in that office, and asking for them to review 4000 documents to see if they meet the criteria is indeed burdensome. When our staff could be doing the district's business, they are instead spending time on this wild goose chase.

    And his tone does appear to be inflammatory. If he asks for something, and does not get it, he resorts to escalation. This sounds like a CEO used to getting what he wants by laying the smack down on the situation; now he resorts to a lawsuit because he has the money to do so. Sounds like he wouldn't stop at any cost, anyway.

    It seems Robertson is creating his own maelstrom. And its costing the DMUSD time and money that could be better spent on our children.

  2. Peabody of DMUSD refuses to release documents, but claims that it's inaccurate to say he's hiding them
    To Jim Peabody, superintendent of Del Mar Union School District:

    Dear Jim,

    I, for one, am prepared to believe you when you say to Michael Robertson, “We have no interest in ‘hiding documents' as you've charged."

    Why can't Mr. Robertson accept that you really want to turn over all the documents, but for some reason you just can't? Maybe no one in your office can find the documents. That was the reason given by your lawyer Dan Shinoff and his partner Ray Artiano when they didn't produce the documents I subpoenaed when Stutz Artiano Shinoff & Holtz law firm sued me for defamation. But there could be other explanations in your case. Heaven knows it's a crazy world. Maybe someone took the documents to the beach and they got all wet and sandy! Whatever the reason is, I'm sure it's a good one.

    I see that you have provided three alternate explanations for why you haven't turned over the documents:

    Alternate explanation #1:

    “The district objects to the requests as they are vague, overbroad and burdensome.”

    There you have it. It's just that it would be too much work to produce them, not that you want to hide them. Excellent response!

    Alternate explanation #2:

    “In addition, the district objects to your requests insofar as they seek any information unrelated to the conduct of the public’s business.”

    Now I'm confused. I thought you said you weren't interested in hiding the documents. This seems to be a justification for hiding the documents. It appears that do you want to keep them secret.

    Alternate explanation #3:

    “The district further objects to your requests insofar as they seek records exempt from disclosure because the public interest in not disclosing the information clearly outweighs the public interest served by disclosure.”

    Ah! Now this explanation is pure genius. You are not interested in hiding the documents, the public is! Who can argue with that?

    Well, I guess the public can argue with that. I'm afraid you've given Mr. Robertson an opening here. If you say it's in the public interest to keep the documents hidden from public view, then you're pretty much obliged to consider the public's opinion on the matter. Mr. Robertson is clearly part of the public.

    And there's another problem. Why exactly is it in the public interest to keep the public ignorant? Are you saying that the public benefits from being kept in the dark? Perhaps the information would change the way they vote, and you want to protect them from themselves? You want to stop them from electing someone unsuitable? Now we're getting into the very heart of the matter. The precise reason we have open government is so that the public can decide if the people it has elected are performing as they wish. The public has the right to elect someone who seems unsuitable to you. Without transparency, elections are a joke. Voters don't really know how their elected officials behave behind closed doors, so they don't know who will best represent them. Until schools start operating transparently, school board elections are hardly more effective than rolling dice.

  3. they had it coming

    I am so glad that, finally, a member of the community has stepped forward to shed some light on Superintendent's Peabody's and Trustee Rodriguez' real priorities: to protect unions and other government employees; NOT to serve the district's families. Comischell Rodriguez is up for re-election in 2012, and I am looking forward to seeing her replaced by someone who will advocate for the interests of our children and their parents.

  4. DisgustedInDelMar

    Hooray for Michael Robertson! The community is truly fortunate to have him here, spending his own money to hold the district accountable. It's a shame it has to happen in the first place, but it's great that he is willing to take it on. We all owe him a debt of gratitude for this, regardless of what anyone may think of his "tone" or approach or past history as a combative CEO or whatever. All that doesn't matter one bit – he is just doing what is right in this situation. How can anyone debate this? It's crystal clear.

    It's pretty bizarre that Jim Peabody and others seem to be continually stonewalling Michael's repeated requests without even providing an explanation that's legally acceptable. Are they really hiding under the guise that it's too burdensome?? First, most organizations can easily cull out all emails that have been sent between specific email addresses. If DMUSD cannot, they need to find a new IT person. Second, why would any human eyes have to look at any of these emails at all? Just release them. It's all part of the public domain. No need to look it over. There appears to be absolutely no justifiable reason to hold up this straightforward request, and it's pretty scary that the district somehow is continually ignoring it.

    Mr. Peabody and DMUSD Board of Trustees, please address this issue as soon as possible in a wide public forum, preferably at a Board meeting, in a letter/column printed in this paper, and on your website The community deserves an immediate and thorough explanation as to why you can't/won't do this.

    What would be even better is to simply produce the information that's being requested and put this behind you. Seems like that would make the most sense. Plus, that's the legal and ethical thing to do and would send a much better message to all those children of ours that you're educating.

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