Though Measure A ultimately failed, the fact that SANDAG, the agency backing the massive transportation sales tax measure, knew its numbers were way off was information the public should have had before they headed to the polls.
Indeed, we put in the California Public Records Act request that ultimately netted the explosive emails revealing SANDAG officials knew the measure would not generate $18 billion, as they claimed, before Election Day.
Yet it took months of back-and-forth, in which we had to insist that the emails were public record, before we obtained them.
Only when our lawyer stepped up the dispute by formally threatening to sue did the agency release the records.
Even then, it took nearly two more months to finally receive the emails.
They came in a batch of 2,700 emails after 6 p.m. on the Friday before Martin Luther King weekend.
After wading through them all, we found what we had suspected: SANDAG staff had discovered in fall 2015 the fatal flaw in its economic forecast that had spiked revenue projections for their tax increases beyond reasonable expectations.
Staff then put together a painstaking presentation to the agency’s executive leadership detailing the problem – though they misdiagnosed the specific cause of the problem – and the implications for both the 2004-approved sales tax TransNet and any future tax, such as Measure A, which the agency nonetheless put on the ballot months later carrying the faulty revenue expectations.
Executives said they did not disclose the erroneous forecast because the agency’s former chief economist convinced them that while the expectations were aggressive, they were not impossible. The agency has since adopted a new forecast and acknowledged that the old one was simply wrong, not a difference of opinion between economists.
Public records are a bedrock of journalism. They’re not always easy to get, though, despite laws requiring agencies to turn them over. Agencies and officials regularly claim exemptions from the law that don’t apply. Just as often, staffing shortages and other responsibilities result in improper but understandable delays.
Typically, this is all an unremarkable part of journalism.
The gravity of the revelations contained in the emails and the fact that we requested them before an election — and yet they were held for many months longer — make this a far more serious transgression than everyday records-wrangling.
On Oct. 28, 2016, we requested under the California Public Records Act all agency correspondence relating to a series of keywords associated with the flaw in SANDAG’s forecasting model.
Two weeks later, on Nov. 11, a SANDAG paralegal provided the agency’s initial response. Our request produced 7,700 emails, he said. The agency claimed that it would take three minutes to inspect every email, amounting to 385 hours of staff time, and would therefore overly burdensome on the agency —a claim that he said exempted them from complying with the law.
“The public interest served by not disclosing the records clearly outweighs the public interest served by disclosure of the record,” wrote Peter Stevens, citing a section of government code and a legal case from 1982.
We offered to narrow the request to apply only to employees directly involved with the agency’s models and forecasting.
The new search still resulted in 7,700 emails, the exact same number, Stevens said, so they were still not required to turn over the records.
That’s when we decided to get our lawyer involved.
Felix Tinkov, a partner at Lounsberry Ferguson Altona & Peak in San Diego, said that ultimately, the case SANDAG cited as precedent would not hold up.
It’s true that the burden of disclosing records for an agency needs to be weighed against the public interest in whatever the records would reveal. But in the court case SANDAG cited to make that point, there was a limited level of public interest in the records.
There are other reasons why the case SANDAG relied on as precedent was problematic: Since it happened in 1982, it had lost some of its impact. Technology can now help agencies relieve the burden of sifting through records by hand, as they did when that case took place. And, the request in that case was for a random sampling of documents, whereas ours was a specific and focused request.
Oh, and SANDAG seemed to have plucked the “three minutes per email” standard out of thin air.
On Nov. 21, Tinkov submitted a letter to SANDAG outlining the issues with the agency’s claims and emphasized we would take the matter to court if necessary.
“We hope it does not come to this,” Tinkov wrote.
In response, SANDAG offered to provide emails from Nov. 1 2015 through Nov. 30 2016. That represented some 2,725 emails.
On Dec. 5, we agreed. SANDAG said it expected to finish reviewing the emails by the end of 2016 and would let us know at that point when we would receive them.
But on Jan 3. 2016, SANDAG said it had reviewed just over half of the 2,725 emails. Stevens said SANGAG expected to complete its review by the end of January – nearly three months after the initial request.
Instead, we proposed: Why don’t you turn over the records you have already reviewed? Since the review was now taking twice as long as the original estimate, why don’t you give us what you have so far?
SANDAG countered that it would make all of the 2,725 records available on Jan. 13.
We accepted their offer and agreed to forgo taking the issue to court for the time being, assuming the records were released on or before Jan. 13.
Finally, on Jan. 13, at 6:09 p.m. of a three-day weekend, SANDAG provided the records that we had requested 78 days earlier.