Controlling the message – No one exists to answer the questions

Posted on December 17, 2012

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                                           Judicial Council Org Chart – Click to enlarge

The less obvious consequences of item x on last weeks agenda is the separation created between a request for a public record and requests related to Darth Huffman’s domain, transparency and accountability.

Nobody begrudges Chad Finke and his group in weeding through the requests. There are lots of requests related to either public records that they would prefer to not release and public records that are related to both policy and decisions made that they wish to avoid addressing. In most cases where someone isn’t asking for a specific public record, the AOC isn’t going to research and produce a record, they’re going to write back with something like that wasn’t a request for a public record under CRC 10.500. They make it so you have to ask for the specific document.

In many of the actions the AOC undertakes, someone at the AOC made a decision for that action to come to fruition. Usually, these actions are documented in some way. Case in point: The Long Beach Courthouse. If one looks at the legislation, the legislation authorized the judicial council to explore proposals and plan for a PPP in Long Beach. Nothing in the legislation authorized the AOC to build Long Beach and as we all know, Long Beach jumped up the list from number 41 to number 1. Someone at the AOC or on the council took liberties and jumped the courthouse up the list and told someone to build it. This is not likely a public document that the AOC would wish to release because much like most of the other requests for information to the AOC, what is being requested is a record of accountability. Who did what to arrive at a decision to turn “authorize the planning of a PPP in Long Beach” to “Authorized to build a PPP in Long Beach”.

That didn’t happen in the legislature. It didn’t happen in any Judicial Council meeting. So where did it happen? Did Vickrey take it upon himself to authorize the construction of Long Beach? Did Vickrey override the planning of the council and their courthouse priorities list? The overriding of the courthouse priorities list has happened a few times. Who authorized this because the council themselves never voted on it. These are the kinds of questions that should result in the production of a document that points to a policy decision being made. They likely exist in document form but because you didn’t ask specifically for THE document, you’re making an inquiry about policy and therefore you’re not entitled to the answers.

No one is entitled to the answers. No one exists to answer the questions.

Is this the government of the people, by the people and for the people that we signed up for?

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>> On your agenda, as you can see item W is deferred to a different judicial meeting. That brings us to item X for public access to judicial administrative records. This is an action item. We have presenting the Hon. Judith Ashmann-Gerst and Honorable Harry Hull and Mr. Chad Finke.

>> Thank you Chief and members of the Council. What are we going to do this morning or afternoon is that that is going to give you some of the background of the origin of rule 10.500 and Judge Hull will talk about the interim process and I will then talk about the proposed policy document itself.

>> [ Indiscernible – Multiple Speakers ]

>> That is fine, but I will go however. I could give some introductory comments, just to give the Council some perspective as to how we have come to this item today. As many of you know, the employees of the administrative office of the courts have long received requests from both trial and appellate courts for advice and assistance and information relating to matters related to ongoing court trial and appellate court operations. The AOC, by my understanding has always tried to be responsible and responsive and be helpful with those requests.

>> Last spring, at least as far as my knowledge goes and perhaps before, it became known to some of us on the Council that the AOC did not really know how to handle some of the requests that have been coming to them and how to respond to certain requests, specifically, we were — the AOC was receiving requests that asked for explanations. Indeed, in many cases justifications for Council and AOC policies.

>> There are some examples in the staff report. I will refer to a couple of them to give you — to remind you of the types of requests that became very difficult for AOC employees to know how to respond to. One, for instance, said that how much do Warren, former AOC Judge Roger Warren and Edwards being a former AOC judge in — judge in residence, the Honorable Leonard Edwards actually work, one week per month — or two weeks — I noticed Warrenʼs salary is now listed as about 1 half what it was listed in 2009. I’ve heard he works one day per month. A second example, was there ever any raise pay increase, pay modification, hourly wage increase or wage modification given to reduce or eliminate the financial impact of furlough days on AOC employees? There is another example that I will address momentarily.

>> As I said, it was difficult for the AOC employees to know how to answer requests for information such as that. There was an additional concern on their part, which I’m sure we would share had we been in their position, and that is that these requests were coming from judicial officers for explanations of policies and other decisions that the employees had no hand in.Frankly, they probably had no knowledge of at the time of the requests being received. In addition to that, it turned out that the time, the staff time means we spent on requests such as this was becoming, to say the least, some desperate and some — do you have those figures and what you referred to them?

>> I do, I can talk about that now or wait.

>> Weʼll just wait until we get to that. That is fine. A number of us, when we became aware of this, were trying to figure out how to handle such requests. We talked the matter over and initially, and this is the interim program that we have been following, felt that certain requests, such as these, should not be directed to AOC employees, but instead to members of the Council and preferably given the office of the requesters, to a judge. I volunteered to be the contact person for that purpose and that offer was accepted.

>> Since about early August, I have had referred to me approximately six to eight requests to which I have replied. Again, by way of example, I had one request from a judicial officer — actually Ms. Roberts had one request from a judicial officer that was referred to me — that said, I know that the minutes of each Council meeting begin with the recitation of all Council members present, all Advisory Members present and other members present. I further note that the administrative director is listed among council members present rather than under others present or Advisory Members present. The director of AOC is not a member of the judicial Council and never has been. Why is the director listed among the Council members? I was able to refer the requesting judge to rule 10.1 subdivision b of the California Rules of Court that says the administrative office of the courts supports the Council in performing its functions. The administrative director is the secretary of the judicial Council and rule 10.2 subdivision B4 says the administrative secretary is elected to the Council and performs — is provided by the Constitution and the laws of the state of California, is delegated by the judicial Council of the Chief Justice, the secretary is not a voting member of the Council, in the hopes that would clarify the matter for the person making the request.

>> There was a second request that I responded to in September, noting that there had been a request to Mr. Finke that also was conveyed to Justice Miller on a Sunday afternoon relating to the actions the Judicial Council had taken the previous week in approving and implementing the recommendations of the executive and planning committee which dealt with the reorganization of the AOC. I was able, at that time, to respond to their request and provide the requester the links to the Judicial Council action discussions of the previous week relating to restructuring of the AOC and also to the PowerPoint presentation used at the judicial council meeting as it related to that restructuring.

>> A third example, going back to August, a judicial officer had sent a request to Ms. Patel saying as filed on July 18th — it was a straightforward e-mail to Ms. Hershkowitz — the only contact I received is the automated out-of-office reply. I am not the only one having problems getting timely and candid responses from your staff, referring to another judge who had great difficulty in obtaining a response from Mr. Child regarding his lobbying efforts against section 60805, which the chief justice said she did not oppose. In fact he did not respond until you apparently intervened. And then his answer was wholly non- — I think it was referring to Ms. Patel — and then his answer was fully nonresponsive.  Continuing and recording.  That is the question. In

capital letters.  Did the council, chief or — all in capital letters — anyone else tell him to lobby against the changes to go with code section 68085 and did he in fact do so?

>> I took this as an allegation of inappropriate conduct by Mr. Child and Ms. Hershkowitz in not following either the Chief’s or the Council’s lead on this issue, and I told the judge that I would look into it. I did look into it and I determined there had been no inappropriate comment by either of those AOC employees and I so informed the judge. It became apparent by this time that in light of the nature of the request, the hybrid request, that perhaps we needed to come up with some policy clarifications for AOC employees, especially for requests that came in, in some form that that might ask for a document, but many of which did not.

At that time, Justice Ashmann-Gerst and Judge Hermann and Judge O’Malley both of which were on the original 10.500 committee and Mr. — Mr. Finke and me in a much lesser role got together to consider a policy proposal to place before you, which turns out to be today. I will finish by saying — and then I’ll turn matters over to Justice Ashmann-Gerst and Mr. Finke — that the proposed policy and the responses that we have made have not been based on anything other than an area — and certainly are not an effort to restrict or make more difficult requests for information, but to provide guidance to AOC employees who receive the types of requests which I have referred so they will better know how to handle them. With that —

>> Thank you, again. As Justice Hull said, at the same time that we started getting their increased requests and staff was being reduced, they determined that — the Chief asked Judge O’Malley and myself to review procedures and come up with a clear and concise policy for the staff to follow. We included Mr. Finke, Justice Hull, Mary Roberts, Peter Allen, and others as we felt were appropriate to come up with an appropriate policy that was easy to follow and a guide for all these requests. I have to attest, these are not within 10.500, these are the other kinds of requests and we will go into those in a little bit of detail, because that is what is in the policy. That can give you back-up.

>> Thank you, thanks, Chief and members of the Council. A lot of the background has already been touched on, but so that you know why I am involved in this. my office is in charge of administering the agency-wide responses to 10.500 requests that come in. We also do it on behalf of all the appellate courts. I think what Judge Ashmann-Gerst said is important. This policy before you today is meant to run parallel to 10.500. It is not in any way intended to modify or amend 10.500 or nor to alter the way staff currently have a request for judicial administrative records under that rule. We have — if you look at the policy, you will see a couple places where it directs staff via hyperlink, if you determined this is a judicial administrative records request, do what you have been doing. We have extensive documentation on the Internet to guide staff in how to respond to this request.

>> 10.500 was adopted by the Council in December of 2009; it went into effect to everyone in 2010. For the first 1.5 years as staff were getting requests for that rule, I don’t know that we had it in our head to differentiate between these informational type requests and judicial administrative records requests. We try to answer everything that came in, whether it called for documents or narrative response or what have you. Then, as Justice Hull pointed out at some point or other, not only did the amount of time become an issue — and I’ll talk about that in a moment — but the issue came up, is this really appropriate for staff to be responding to these types of questions?

>> That was in mid-2012 that we started having that discussion. Those of you who were on the Council at the time may remember, it was in October of 2011, I was given the direction by Justice Miller as chair of E&P to pass along to all staff that in responding to requests under the rule, we should interpret that rule narrowly and not go beyond the requirements of the rule in responding. Again, at that time, which was late — Chief, I don’t know that we as staff had firmly in our minds the distinction between these informational type requests and record requests. We interpreted that more of — don’t create new records, which the real record already talks about.

>> I don’t think we were completely clear, yet, on how different these sort of informational type requests are. And the development of this policy starting with the interim procedure that Justice Hull talked about. And then the new policy that is before you, now.

By way of numbers, and this is reported and in the report itself, although I went through and re- added the numbers right before this presentation and either I did my math wrong or I hit the wrong key in typing the report. The report represents 734.7 — the night we did the math, I came up with 733.7. I want to make sure the record is clear that I’m not trying to play games with numbers.        It is one or the other — and I can redo the math after this, but how we got there is, when we got to mid-2012, and as we were downsizing and really under Jodi’s direction it can — I can take a look at it, at what we’re expending staff and staff time on — and in reorganizing the AOC, we became concerned about the amount of staff time we were spending on all requests, not just informational, but 10.500 as well.

>> Jodi directed all of the division directors to audit staff hours for June and July and keep a particular careful tab, not just of total hours, but by staff person. We would then know not only how many total hours is my division spending on this, but whose hours are they? Is that the administrative level? Is at the analyst level? Is that management division director? We did that for June and July and kept pretty careful records. That is where we came up with this total figure of either 733.7 or 734.7. At that time again we work — that was for everything — so that was 10.5 under, it was for informational requests that we hadn’t yet begun referring to justice — Justice Hull and it was for the hybrids which are a blend of the two.

>> You will see in the report that staff is estimated that we think on these 734.7, probably about 45% of those were either straight information requests or the hybrid types. They did have some — about half of those hours probably less than half in some way involve staff trying to deal with these questions that ask for information as opposed to just asking for records, which we can then — we have procedures for identifying and producing records.

>> It was against that backdrop and Chief put into place and Justice Hull in the interim and I was directed to work with other AOC to prepare the policy before you.

>> What the policy does, the first thing in our discussion, is try to determine the type of request and determine — they are falling into four different categories. What is a request for, additional administrative records under 10.500, and nothing changes about those. The next is requests for basic programmatic or process information that may not be involved or embodied in judicial and ministerial records, but are important. Particularly this is for judges in going about their business. An example of that might be how far in advance of his or her preferred starting date for serving on assignment should a retiring judge submit the application? How long does it take typically to

process the compensation claim for a panel training? Is the kind of things that we as judges need to know. Again, there are no change in those types of request. Theyʼre according to the policy of each officer division.

>> The request that require an explanation or a decision or policymaking or is otherwise inappropriate for staff to answer is what the policy attempts to focus on. We also felt it was important to divide that up by the kind of requester because judicial officers have important needs. We divided it by judicial officers, by members of the council advisory committees, media, which would go to Peter Allen, Allen’s group, executive and legislative requests, that would go to OGA, and then the general public. You can see from the policy how we divided that and where to go. The most complicated of course was the hybrid request. Those are were the requests that asked some aspect of the judicial administrative records and some that are not.

>> We have asked staff to try to parse those. Those aspects of the requests that can be answered pursuant to 10.500, go ahead. Those that cannot be, should go under the policy that includes Justice Hull. Bottom line is the goal was to give direction and staff consistency and ensure that there was consistency throughout the AOC. That was our whole purpose in this.

>> We had many phone conversations on it, many conference calls, lots of emails back and forth. We studied this from August through now, and this is the policy that we have suggested. I would ask if either Judge Herman or Judge O’Malley have anything they want to ask? They were involved in the original initiation of 10.500 and perhaps they have insight for us. Judge O’Malley?

>> Judge Herman and I were involved in that committee. I would not say I was the chair of that committee, but I think I helped lead the discussion of the committee. We worked very hard in creating and forwarding to the judicial council a rule of court with regard to public access to judicial administrative records. We worked with legislative staff, First Amendment folks, other interested parties — very hard to adopt a rule of court acceptable to all interested parties.

>> Since its adoption, what I have seen through Mr. Finke and the requests from the AOC have been a number of requests which do not fall in the purview of 10.500. They are hybrid requests. Part of it might and part might not. And there are many requests that were completely outside the role of 10.500. These requests when posed to staff were really difficult to determine. For instance, and this is coming from another judicial officer, it really puts staff in a very awkward position of, how do we deal with this? They did try to deal with it for months and months and months. It wasn’t until we were realizing the hundreds of hours that were being expended in answering the types of requests that we were seeing that were — honestly, some people have a lot of time on their hands. I did not. It was amazing what it was they were asking for, some to be possibly legitimate requests and some I could not see any logic whatsoever in the request.

>> Especially, the logic in expanding the number of staff hours that was required to answer these requests. It got to the point of absurdity. It really did. When you reach that point, then we formed this committee. There had to be some action taken because you could not continue doing what we were doing. Especially, with the realignment of the AOC, the staff was going down, they just did not have the time to be able to invest in these types of requests. We really went through all of these requests and the packet was quite extensive. I think at some point, Council members may have had a brief look at that particular packet. I — again, by looking at the nodding heads around

the counsel table, you know what it was that Mr. Finke and his staff were — are dealing with. It was very important that we needed to establish a policy, not to restrict access to the records, judicial administrative records that everybody has a right to, that was certainly not the purpose. The purpose was to assist staff in identifying what type of request this is.

>> Identifying the type of requested is, then you can go forward with compliance. You can give them the parts of the — or comply with records that are easily obtainable and accessible and can be turned over. On other policy issues — or why do you address a person at a judicial Council meeting in a certain way and how you introduce them — again, that is not for staff to say. Those had to be given, but staff had to be given direction. If they just answered part of the question, they were in fear of offending the party who asked for the information. Again, they should not — not be put in that position.

>> We had to give them an avenue, a direction, sometimes with — have you handled the rest of the question — that you have no business answering. That is what this policy is about. This policy is about helping staff to more easily identify the type of request it is and then, because we identified who it is from — because who it is from can go to a different entity to help answer the question if you can be answered, more expeditiously. That is not to say this is a judge or this particular judge or this is a judge from this court and so weʼre going to stonewall this. That was not the purpose — at all. The purpose is to help expedite the process. If it is something from the legislature, it is going to go to OGA because they have answered those questions for years and years and years. That is the right place for that to go.

>> If it is something that someone from the Council should answer, Justice Hull or anybody else or any one of our committees, it’ll get pushed out. Again, this was designed to assist staff in dealing with these issues, more expeditiously, so that we can deal with what we were being inundated with. That is my $0.02. Thank you. I hope that we adopt this policy. Judge Herman?

>> I would concur on all the comments. The real emphasis here is, this is not in any way an alteration of 10.500, which again a lot of work was put into with all of the stakeholders to assure that we had both an identification of records that were — the public is absolutely entitled to as well. It is a procedure to get access to those records. This really does merely address those requests that are outside of 10.500 and to give all of the staff across the board a clear understanding of how to triage or address those various requests.

>> Thank you. Judge Jacobson and Judge Rosenberg?

>> These guidelines are reasonable and they give staff guidance that the staff deserves. They promote clarity and consistency therefor.  Therefore I move to adopt the second recommendation.

>> Second by Jim Fox, and I will also hear from Judge Rosenberg and then Judge Moss? [ Indiscernible – Low Volume ]

>> When I first got into this subject, I thought we were really just dealing with 10.500. As I learn more about this, it is really about 10.500 and everything other than 10.500. As I understand it, we are really not changing anything with regard to rule 10.500. People make a request for records, they get the records pursuant to the rule. What we have been struggling with is all of these other

requests that are either not 10.500 requests or some sort of hybrid. It is a little of this and a little of that.

>> This whole discussion has gone well beyond 10.500. I agree that this is a very thoughtful and very balanced approach and it will really work. Here’s my concern. The numbers you’ve indicated about staff time are some of — frankly, very troubling in light of the increased workload and reduced staff that we have. Under this new approach, has there been any evaluation in terms of FTE, full-time equivalents, staff that might be expanded in dealing with these requests?            Are we talking about effectively a full-time or two full-time staff members in the course of the year?

>> Just to make sure I understand, judge, you speak of the new policies that were adopted? >> Yes.

>> To answer your questions as vaguely, no. I can tell you that I feel very confident it will be less staff time than now, because where the time really comes in is staff attempting to figure out substantively how to respond.

>> Okay.

>> Since that burden is being removed from staff under the policy, the only time will be the time that it takes to evaluate and see this is not a staff-appropriate issue and referred on to Justice Hull or whoever the Chief appoints.

>> Let me ask one final question. Let me assume you get a request in the future that is something like, why did the Judicial Council approve a stand-alone office for security? Clearly, itʼs not a 10.500 request. You would send that request to Justice Hull or whoever is designated, and then what would they do with that?

>> I guess I’ll defer to Justice Hull on that one.

[ Laughter ]

>> I think, as Judge O’Malley said, we want to continue to honor requests. There is a tension here, I don’t think that either I or members of the Council or members of the various advisory committees can afford to spend a great deal of time in answering inquiries as to why we went to the Council deciding to keep an office of court security. I think we’re just going to have to take it as a request at a time and do the best we can with it, which is what I have been trying to do since August.

>> I would add that obviously if there is a written document dealing with it that comes within 10.500 and we are happy to provide the document —

>> On that example, even the audio recording of the Council discussion. >> Or just give them Jim Brandlin’s phone number. [ Laughter ]

>> Wait, there is an order here. Judge Rosenberg —

>> It doesn’t change anything about policy or process, correct, Mr. Finke? If you can reasonably recast into a records request.

>> No, thatʼs right.

>> — artfully written, but it can be reasonably recast into a request for a particular document or documents — a document that weʼll be taking care of initially under 10.500.

>> Absolutely right. I will use Judge Rosenberg as an example. If we receive their request, why did the Council do asked-for improvements. The first thing we would do is check to see if there are any records that answer the question. We don’t look at the phraseology of the question and say, that is a why question, not a given document question. That is what drives the number of hours, we do look at that. Regardless of exactly how to set up, we think, are there any judicial administrative records that would answer that. If so, we provide them, presuming they are not subject to any basis for nondisclosure. None of that is changed. When we get to the point where there are no judicial administrative records and answer to this and they are demanding an answer rather than staff craft segments of the reference would be made up.

>> Thank you.

>> Angela Davis?

>> I agree that this is a really good policy and I am vividly remembering the meeting when we went over [ Indiscernible ] inquiries and it is obviously necessary especially with the reductions in AOC staff. There were two things I want to bring up, one is that a lot of the inquiries that are non- 10.500, however you want to categorize the motivation behind them, is the underlying question designed to expose inefficiencies or ways that are perceived inefficiencies or ways that the AOC — particularly given the climate in which all of us are working and the efforts to overhaul AOC come — I think the requests themselves at a minimum need to go to the executive office, even though they are going to be resolved and responded to through this consultative process with the different staff divisions and the consultants as outlined in the policy.

>> That was my first thought. My second thought is that I notice for non-10.500 requests from the media, our media office under this policy will be responding to those, but there is not a consultation requirement for the media. It occurs to me, given some events over the past year or two, media is a broad category and there was an incident about a year-and-a-half ago, a television station requested expense reports and the way the expense reports were packaged up by someone — I don’t know who did it, but the way they were packaged and delivered to the media outlet that requested them, they were a little bit ambiguous and they did give the impression that the AOC and judicial council was reimbursing expensive restaurants and alcohol. It is my view that could and should have been handled differently, perhaps with a cover letter and with participation of our executive office to get it in front of what was obviously an issue and then an intent to expose something and explain exactly how those expense reports were handled and how it was a statutory per diem despite the inclusion of receipts for other things in the records that are maintained.

>> I would suggest that, with a non-10.500 request going to the media, the media respond to those requests after consulting with the — at a minimum the executive office.

>> Thank you.

>> Ira?

>> I agreed with what you are doing. The only thing is that we have a First Amendment right in any right to be responsive. I was going to ask that we come back in a period of time, whether it is 90 days or 180 days, and have a report back to see how the policy is really working. Also, saying if there is any push back in the sense that people are not satisfied or they’re not getting what they think they should get. This is a new policy coming in. I think we as a judicial council should have an oversight to see that it is working. Also hearing from staff, is it making their work harder or easier. Until we have that and move on.

>> Judge Herman?

>> I would just add that I think Judge O’Malley is trying to be modest in terms of what really was leadership within the 10.500 committee. The committee worked long and hard and particularly focused on the issue of the unsophisticated public requester of information from the courts to design a process where we could come together in terms of what information they were really seeking and then provide what information was available to answer their inquiry from. Quota pulled from the administrative records, that process is already built into the 10.500 and it is only when that process is exhausted, so to speak, and the requests are clearly outside or a hybrid request relative to 10.500 that the staff would have the guidance on this policy to triage those requests and place them where they are appropriately responded to one way or another.

>> Thank you. I will add one thing that I’m not sure has been completely covered by this. The two months and 733 hours are quite, quite, conservative. This has been an issue not only with hybrids, but there was a period of time and most recently where requests of hybrids of all three types of 10.500 and hybrids would come in to multiple people at different times with the same kernel phraseology in question, but it would go to OGA, go to a deputy, it would come to me, and we spent many, many hours trying to figure out who should respond and what they were looking for and were we being timely under the rule. There were many discussions about staff time until there was the decision to start to chart it in order for us to get a handle on how to adequately staff these requests.

>> It was all in an effort to try to get the — the information out, come to a good faith effort to try to respond to — a lot of these questions, some of which are frankly embedded in policy that is decades old, that were efforts made to try to provide that information.    So I think the guidelines, the policy as recommended is very helpful especially with the report back to find out if we’ve been able to actually do as well as we can in responding to requests and using our time efficiently in our new environment of fiscal austerity and trying to be accurate as well. We want to be accurate and we don’t want to create more requests by our response, which sometimes happens in certain instances.

>> Chief, your comment has raised a question. Mr. Finke, if there are multiple requests that come in, similar requests going to four or five different people, does the staff at the AOC know that you are the clearinghouse?  They all have to send them to you.

>> They do now, but as we were developing this in mid-2012, as Chief pointed out, that was part of the issue. Because these were not 10.500 requests, I think staff in subdivisions were quite sure. Some folks would say it seems like something we should send to Mr. Finke, suspended on another, or would say, no, they’re not asking for documents so I guess we better respond. I think this will hopefully eliminate the possibility of multiple responses that may be inconsistent.

>> Where are we on the status of the motion?

>> It has been moved and seconded. Do we need to amend [ Indiscernible – Multiple Speakers ]

>> Do want to accept the friendly amendment? [ Indiscernible – Multiple Speakers ] as what I —

>> Maybe in six months.

>> All in favor?

>> Aye.

>> Any opposed?

>> [Silence].

>> Motion carries. Thank you for this thoughtful policy.