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.”