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A state appellate court on August 15 ruled the City of San Diego failed to turn over documents requested in a Public Records Act request and is liable to pay attorney fees.

On August 7, 2015, an attorney for Ponani Sukumar submitted a Public Records Act Request for documents pertaining to a code-enforcement investigation conducted at Sukumar's residence. Beginning in 1990, Sukumar's neighbors registered complaints to the city about noise and other disturbances from industrial washers and dryers Sukumar installed in his garage. During the course of the next 25 years the city launched numerous investigations. In December 2014 the city notified Sukumar that he was subject to fines for lack of parking and for operating industrial equipment in a residential zone.

As the investigation continued, Sukumar hired an attorney who then submitted a request to view all documents mentioning Sukumar, his property, and the neighbors who filed the complaint.

Staff at the city began compiling the documents. Three weeks later, Sukumar's attorney filed a writ of mandate after he felt that the city had failed to disclose numerous emails and photos.

During discovery, the city released hundreds of emails and other documents. In March 2016, deputy city attorney Catherine Richardson told the court that she was willing to testify under oath that all disclosable documents had been turned over.

"Your Honor, I'm happy to provide verification that we've produced everything," Richardson told the judge according to the appellate court ruling.

The trial-court judge then ordered the city to present three witnesses to verify that, in fact, all documents had been disclosed.

Shortly before the testimony, the city produced additional emails and photographs — the ones that Sukumar's attorneys had requested. To make matters worse, one month later the city found another 146 emails relevant to the case.

However, despite the discovery of additional emails, a trial-court judge dismissed the lawsuit and found that the lawsuit did not compel the discovery of additional emails, thus preventing Sukumar and his attorney from collecting approximately $99,000 in attorney fees from the city.

Sukumar appealed.

On August 15 the appellate court overturned the trial court's ruling.

"The trial court's finding that the city 'was not motivated by this lawsuit' to produce responsive and material documents is not supported by substantial evidence," reads the court's ruling.

"In the face of the city's unequivocal assertion in March 2016 that it had already produced everything, the conclusion seems inescapable that but for Sukumar's persistent demand for discovery and the court-ordered depositions that resulted from those efforts, the city would not have produced any of the above-mentioned responsive documents."

And while both Sukumar's attorneys and judges found there was no bad faith in the city's withholding the documents, it was clear that the lawsuit prompted additional emails.

"However, bad faith is not the test. The effect of the city's inability or unwillingness to locate and produce these documents until court-ordered discovery ensued after March 8, 2016, is tantamount to withholding requested information from a [Public Records Act] request."

Furthermore, the appellate court ordered trial-court judge John Meyer to reverse his decision and rule that Sukumar did in fact prevail in the case and that he determine the amount the city will pay in attorney's fees.

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Comments

JustWondering Aug. 17, 2017 @ 9:49 a.m.

Not only should attorney fees be awarded, but personal penalties against ALL city employees involved in the withholding of documents.
Once again we see the arrogance of city employees. While typically not the decision of the first level worker, their supervisors, managers and ultimately their political bosses should be held accountable. And I don't mean they should pay from City assets. Only when penalties are assessed against personal assets will this behavior end. In other words, when employees are held personally liabable and personal assets are in jeopardy will this arrogance end.

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Cassander Aug. 17, 2017 @ 10:15 a.m.

We keep seeing problems with municipal compliance with Public Records Act requests, but the worst problem is what we're not seeing.

Sukumar prevailed in this case only because he knew what he was looking for—those "additional emails and photographs" which he was already aware existed—still had not been produced. The rest of us have to take the word of whomever gets handed the hot potato that they'll give you all there is; and as this case shows, not even filing a lawsuit guarantees they will.

So the issue is that we are forced to rely on the "good faith efforts" of those being investigated to comply with requests. Instead, we should have an independent office, like that of the city auditor, with no other duty except to ensure full responsiveness.

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Fbastani Aug. 25, 2017 @ 11:11 a.m.

Cassander...my name is Farhad J. Bastani. I am former employee of the City...I was a Whistle blower in the City against many unlawful conducts of the City...let me tell you about one of the problems that you do not see which is "Millions of Dollars of Waste of Public Fund in CIP projects".

1- The total annual budget of CIP projects in the City is about $400 Million. 2- There are many CIP projects in the City and the responsible Division in the City to control/inspect the "Quantity/Quality of the material used during construction ", "Invoices" , "Change Orders" and other payments to the contractors/developers and subcontractors is "The City of San Diego Field Engineering Division" which is located at 9485 Aero Dr., San Diego, CA 92123. 3- As an example, suppose that a approved budget of the typical "Slurry Sealing CIP Project" for 300 street sections is about $1.5 M. There are many CIP projects that the approved budget is unnecessary "HIGH" and "Uncontrolled" . As a result, during construction, contractors willfully "Over Charge" the projects in such situation and submit many Change Orders and abuse other over charging techniques. In such situation, many supervisors and inspector with confidence on the so called "Sufficient Budget" of the projects, do not properly inspect the quantities, change orders and invoices. 4- This is "Negligence against Public Interest and Public Fund". 5- I was a resident engineer in the City. During my employment, I had many arguments about this matter with supervisors and contractors for "Over Charging the CIP Projects from Public Fund". Unfortunate, in all instances supervisors interfered and their response to me was "DO NOT WORRY! THE PROJECT HAS SUFFICIENT BUDGET" 6- I had witnessed that there were between $50k-$100k overcharging as an example in a $1.2 M CIP projects. Just imagine who much overcharging exist in a total of $400,000,000 annual CIP Project?

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nostalgic Aug. 18, 2017 @ 3:34 p.m.

Fortunately, this case had a lawyer who knew just how to word the request. For ordinary citizens, by the time you get it (and it doesn't turn out to be what you were expecting), months have gone by, and the information is all OBE. Will changes will be made by the city? I don't think so.

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Fbastani Aug. 25, 2017 @ 10:16 a.m.

My name is Farhad Bastani. I am former employee of the City. In the past an article published in San Diego Reader about my issues with the City and conducts of the City against "Public Records Act" and "Public Safety".

City willfully withheld information and causes "Calculated Delays" during litigations. I am in possession of evidences that the City even "Destroy" and/or "Fabricate Fraudulent documents" and Judges easily disregard such serious conducts against Public Records Act and opponent parties.Office of the City Attorney is very well experienced in causing "Willful/Calculated Delays" and "Concealment of Material Facts". I had repeatedly opposed this conduct of the City in two(2) different cases but I was a Pro Se Plaintiff and the judges did not take me as a serious party in litigations. the City of the San Diego is a very corrupted organization. the relations among its managers is like "MAFIA"!

I know Deputy City Attorney Catherine Richardson. In my latest lawsuit against the City she and another Deputy City Attorney, Keith Phillips, committed "Abuse of Judicial Process" to cover up and conceal the committed serious unlawful conducts. Judges should cease "Blind Supporting" the City of San Diego. It is a very corrupted organization. I was a Whistle blower against the conducts of the City against "Public Safety" and "Public Record Act" and they fraudulently set me up for terminating my employment. There are many irresponsible managers in the City who have caused too many injuries and damages to the people of San Diego.

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