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Voice of San Diego is suing San Diego State University for withholding public records that may show how the university plans to expand its campus into Mission Valley, build a river park and a new stadium – all without raising student tuition and fees.
Last fall, voters handed SDSU the keys to the old Qualcomm Stadium site by approving a measure that essentially forces the city to sell land to the university. The campus expansion may cost the university hundreds of millions of dollars to build a new stadium and begin preparing the land.
Before the election, SDSU officials and allies promised that the university would not have to raise student tuition or fees to pay for the development. They would get money from private partners, donors or the largesse of the California State University system, of which SDSU is a part.
During the weeks leading up to the November election and in the months since, the university declined to provide details showing how it can be so sure it will protect students from any price hikes.
It did let us interview John Kratzer, the CEO of JMI Reality, one of the university’s several consultants. Before the election, Kratzer said his company had run a series of models analyzing the risks to students if the university spends $300 million on the land, river park and site preparation.
“I believe it’s a pretty conservative model, and if I’m right – if I’m right – the likelihood that the student fees or the need for rescue capital or whatever comes into play is pretty low,” Kratzer said.
On Sept. 20 – nearly five months ago – Voice filed a Public Records Act request for those models, along with separate requests for information on the contracts SDSU had with JMI and other consultants, including architects and public relations professionals.
The university has tried a variety of tactics to withhold records. First, it tried to withhold all but one of the contracts. It eventually released contracts but has not released the models Kratzer referenced.
The university claims it has documents that are protected by attorney-client privilege, an exemption to public records laws that allows people to withhold information they tell their attorneys. How can financial models prepared by a real estate firm be protected by such a privilege? The university signed a contract with the law firm of Gatzke Dillon & Balance that, in turn, subcontracted with JMI and other consultants. So, on paper, JMI is working for an attorney that is working for the university.
“Essentially, the university posited (and, likely, still believes today) that by transmitting public records through its outside legal counsel that all such documents could be kept from the public’s view,” Voice’s attorney, Felix Tinkov wrote in the lawsuit, which was filed on Friday.
Before Voice filed suit, Tinkov made extensive efforts to explain to the university’s general counsel, Catherine Barrad, that SDSU was withholding public records in violation of the law. The university eventually released some records it had previously withheld. Yet it continues to withhold other records, including the financial models we have been seeking all along.
“Effectively, the university determined that the public had no right to know how their funds were being expended in furtherance of the school’s campus expansion efforts, what city residents could expect in return for one of its most valuable properties, and whether the university had accurately calculated the costs and sources of revenue for its purchase and development of the site,” VOSD argues in the suit.
Voice of San Diego isn’t the first local media organization to run into a wall related to the university’s plan to undertake a major expansion.
Earlier last year, the Union-Tribune sought some similar records, and the university rejected those requests.
The newspaper asked for some records related to “SDSU West,” as the ballot measure was known, whereas the university referred to its in-house expansion plans as “SDSU Mission Valley.”
Because of laws designed to keep public agencies from spending money on certain kinds of electioneering, the university couldn’t throw its weight behind the ballot measure, but it could have what it called a “strategic conceptualization of what SDSU would do with the Mission Valley property should the University have an opportunity to purchase it.” That concept was known as SDSU Mission Valley.
The university tried to make a similar distinction to Voice, but Voice has repeatedly asked for records related to both “SDSU West” and “SDSU Mission Valley.”
After Tinkov made clear Voice planned to file a lawsuit to get records we’d been seeking since before the election, SDSU attorney Barrad insisted in a Feb. 14 email that the university was in compliance with state public records laws and that the university has a “very strong public interest served by not disclosing” certain documents.
“The university also continues to believe that it has provided you with documents sufficient to convey to you the information you seek, while still protecting the university’s attorney-client privilege, its attorney work product, and the deliberative process necessary for protection of the public good,” she wrote.
Voice disagrees.