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Court Enters Judgment Against BCDC For Violating California Constitution and Public Records Act

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SAN FRANCISCO, May 13, 2019 - Baker Botts L.L.P., a leading international law firm today announced that firm client The San Francisco Bay Stewardship Alliance (Alliance) secured a victory against the Bay Conservation and Development Commission (BCDC) in a legal battle concerning the release of public records and public disclosure.  

The Superior Court of California found in favor of the Alliance, concluding “BCDC failed to adequately search for and timely produce all responsive records requested by the Alliance, all in violation of the Public Records Act and California Constitution.”  

The Court has ordered BCDC to “promptly search for and produce all records” for public review.     

Visit baystewards.com to read the judgment.

“This is a significant victory for the community and the environment and represents a milestone in our work, on behalf of the Alliance,  to reform the BCDC,” said Navi Dhillon, a San Francisco based lawyer with Baker Botts.  

In July 2018, the Alliance sent a Public Records Act request asking BCDC to produce records relating to its enforcement practices and policies, including the use of funds collected as claimed penalties.  BCDC’s original response included no e-mails and the agency took the position that there were no further records.  The Alliance filed suit alleging BCDC was withholding large volumes of records.

During the litigation, the Alliance served written discovery and deposition subpoenas to test BCDC’s claim that it had no additional records.  BCDC claimed the Alliance did not have a right to discovery in a sprawling legal brief.  The Court disagreed, granting the Alliance’s motion to compel BCDC to respond under penalty of perjury.  BCDC’s written discovery responses confirmed that the agency had withheld records, including e-mails.  The Alliance also deposed BCDC’s Chief Information Officer and learned that the agency did not search its cloud-based server, which would have included e-mails deleted by relevant staff.  

“While discovery is relatively unusual in this type of litigation, it proved to be critical to shedding light on the serious violations of law.  The litigation here was hard-fought and proving that that a government agency made inaccurate statements is always an up-hill battle, but the Alliance prevailed in this instance,” added Mr. Dhillon.  

This judgment compels the BCDC to comply with the Alliance’s public records requests made in August 2018 about the BCDC’s activities, including its enforcement program, which is currently the subject of an ongoing investigation by the California State Auditor.

“The Alliance believes the BCDC’s enforcement tactics are nothing more than a shakedown of businesses the BCDC believes can afford to pay fines, which are not being used to improve the environment, but are paying for increased staff.  We believe the records we have requested will bear this out, ” said Bob Wilson, co-founder of the Alliance.

“Navi and the Baker Botts team have been our trusted legal advisor throughout this prolonged process. Their dedication and hard work has served us and our community well,” said Mr. Wilson.

 

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