Cochise County stalling at producing public records -- the story as of May 6, 2014.

The basic story is that the County appeared to honor my request for discovery, but five weeks later a deputy county attorney accidentally revealed that the County had not produced everything requested.  Since then, I get eyewash, not action.

I thought the scandal about water issues was over, but a deputy county attorney just invented a new angle, so here we go again.  We have to work with the dung to get to the daisies, so let's start with Supervisor Pat Call and two of his appointees to the Planning & Zoning Commission, Tim Cervantes and Liza Weissler. All three (Weissler through her husband) get substantial income (total probably about $140,000 a year) from private groups that promoted the water measure which Call, Cervantes, and Weissler voted for as members of public boards.  For more, see
http://littlebigdog.net/ConflictRoundup.htm

To dig into the story, I used the Public Records Law to request communications including those between Supervisor Call and any Planning Department employee (including Planning Department head Beverly Wilson) or Planning & Zoning Commissioner.  I made my request on January 27, to have time to read the material before February 25, when the Supervisors would vote on the water measure.

Some documents were provided on February 13, but nothing that would have made a difference at the February 25 meeting.  At that time I had no evidence that production was incomplete.  Wilson provided some emails between her and Call; I've posted them at
http://littlebigdog.net/CallWilsonEmails1.jpg
http://littlebigdog.net/CallWilsonEmails2.jpg
http://littlebigdog.net/CallWilsonEmails3.jpg
http://littlebigdog.net/CallWilsonEmails4.jpg
http://littlebigdog.net/CallWilsonEmails5.jpg
http://littlebigdog.net/CallWilsonEmails6.jpg

Amazingly, on March 19, five weeks after those emails with Call were produced, deputy county attorney Britt Hanson emailed me that "Supervisor Call's search for 'all Planning Department employees' ... turned up no documents".  I've posted my request and Hanson's response at
http://littlebigdog.net/CallAndResponse.htm

Call is required to keep Wilson's emails, so how could he not find them on his computer?  Well, computer-savvy people will notice something odd in Hanson's email:  it refers to Call's search for "all Planning Department employees" -- in quotes, as if Call searched his computer for the exact phrase "all Planning Department employees," a search which would find nothing if that exact phrase were not on Call's computer, even if his computer had the same emails that Wilson produced. Well, whether Call was being cunning or stupid, he didn't satisfy the Public Records Law.  Read for yourself in ARS 39-121.02 and other statutes at
.
http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=39

Hanson's letter says the employee in charge of the search "did not ask all Planning Department employees to conduct a search for communications with Supervisor Call, nor will she be doing so."  That is, despite the law, Hanson will let the County refuse to search for the records.

On March 31, I filed a complaint with the state Ombudsman.

On 9:14 a.m. on April 1, at 9:14 a.m., County Attorney Rheinheimer emailed to me "I had a fairly full day yesterday, so I was just able to start looking into your concern/complaint regarding Supervisor Call's response to your PRR of January 27.  I would appreciate your patience while I arrange to meet with Supervisor Call and Mr. Hanson regarding your concerns.  Once I feel I have a full explanation of what happened, I will forward a response to you. I do have one question for you, however.  In the Call and Response you linked to in your e-mail, you make the comment in section MPJ-2, "It's Call's duty to keep copies of everything he sends or receives that involves public business."  I know the authority I have relied on in the past regarding a public/elected official's duty to retain public records, but I am wondering if you can tell me the source of authority you are relying on for that statement."  One interpretation of Rheinheimer's email is that he is quibbling instead of proceeding with production.

At 9:26 a.m. I responded "I was using 'everything he sends or receives that involves public business' as a synonym for public records.  I do not mean to be trying to extend the definition of public records, for instance, unsolicited spam or emailed advertisements for office products; my intent was to cover every message sent or received by Call to or from any of the Planning Department or Planning & Zoning Commissioners listed in my request.  I don't think any distinction matters, in a request for emails between Call and County personnel.  Also, as you may already know & as Hanson may point out, I have already agreed that purely personal parts of messages may be redacted without dispute from me.  I look forward to hearing from you and moving ahead in production."

At 9:28 a.m. Rheinheimer wrote  "I'm still wondering, however, what authority you are relying on for the statement that Supervisor Call is required to keep copies of everything he sends or receives.  I did not see the answer to this question in your response.  Thanks again".  As before, Rheinheimer appears to be quibbling instead of proceeding with production.

At 10:47 a.m. I wrote "The statutes that spring to my mind are ones I'm sure you already know, ARS 39-121.01(B) and (C):  'All officers ... shall maintain all records ... reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by moneys from the state or any political subdivision of the state' and 'each officer shall be responsible for the preservation, maintenance and care of that officer's public records.'  I, to mirror your request, am wondering what authority you have for suggesting that emails to and from Call need not be kept.  Hoping to hear from you about scheduling production".

At 1:05 p.m. Rheinheimer wrote "I was just making sure we were working from the same statutes/legal authority.  I will be looking into this and will be in touch.  Thank you".  Again, Rheinheimer is not proceeding with production.

At 2:46 p.m. I wrote "Thank you for answering.  It's possible to take the view that Hanson, by not objecting to my January 27 request for seven weeks, in clear violation of the 'promptness' requirement in ARS 39-121.01(E), waived his right to object at all, and while I'm glad that we're communicating, my discussion with you isn't a waiver of that view.  I want to sketch what I see as the basic problem:  Hanson says that a search of Call's computer didn't turn up any documents pursuant to my request (that is, a search of Call's computer took place; I'd call that another waiver of the right to object to my request).  But Wilson had already provided responsive documents to me.  Therefore either Call had wiped the documents, or the search of his computer was inadequate.  I don't see any other way to get production other than to do a competent search of Call's computer, or to search the computers of all Planning Department employees, or (to make sure that no computer glitches intervene) to search both Call's and the employees' computers so that I can cross-check the results.  I'm hoping to receive something I can inspect and copy during this week.  There's no reason I can see to delay starting the  proceeding.  I hope to hear from you by tomorrow saying that work has begun.  Thanks for your cooperation. "

On April 2, after hearing nothing more from Rheinheimer by 4 p.m., I emailed him "In response to my request for discovery, the County provided discovery.  Five weeks later, Hanson accidentally revealed that the production had been incomplete.  What holdup can there be?"

On April 3, at 9:51 a.m., Rheinheimer emailed me what his office was doing instead of providing production:
.  "In response to your inquiry / complaint addressed directly to me and in order to be able to provide the most complete response possible, the County Attorney's Office is in the process of performing a thorough review of the State Library's retention schedules for county public records.  The State Library creates retention schedules pursuant to A.R.S. 41-1347, which we agree is the controlling statutory authority.  Thus far, a preliminary -- and I emphasize the word 'preliminary' -- review of retention schedules suggests that the County may actually be retaining certain records beyond the periods directed by the State Library.
.  "In any case, I will have a response for you after our thorough review is completed, but that may take a little while.  Thank you for bringing this to my attention directly.  Our highest priority, in this area, is to follow all retention schedules as precisely as possible.
.  "Again, I appreciate your patience while we review and research our obligations."

At 11:06 a.m., I answered:
.  "My request for between County Supervisor Call and various other County officers was part of an investigation of payments by private organizations to members of public boards, who then cast their official vote on measures advocated by those organizations.  Arizona's Attorney General says such records are historically significant so must be kept permanently:
.     "If a record is historically significant, it is a permanent record.  Records are deemed historically significant when they:
.        "Document a controversial issue
.        "Document a program, project, event or issue that results in a significant change that affects the local community, city, county or state
.        "Document a program, project, event or issue that involves prominent people, places or events
.        "Document a program, project, event or issue that resulted in media attention locally, statewide or nationally"
.  "Your email this morning says you are researching retention periods.  Your research should very quickly have found the language quoted above. It's from
.        http://www.azlibrary.gov/arm/retention-schedules
.  "I want records which the County agreed to provide, and said it had provided.  Then your employee admitted that the County had not provided them.  Now, instead of providing them, you are making invalid arguments to seek an indefinite extension of time.
.  "Your email has other language I could discuss, but I'm not interested in discussing every issue you generate, nor in delaying production indefinitely.
.  "Please produce the requested documents instanter.  I hope to view production Friday. Please tell me the location and time that production will begin."

At 1:48 p.m., Rheinheimer answered "I will try to have an answer for you early next week, hopefully Monday or Tuesday."  At 2:02 I answered "I appreciate your answer, enjoy its lawyerly ambiguity, and look forward to getting this off dead center, one way or the other -- though I would prefer production -- by Monday or Tuesday."

On Friday, April 4, at 9:28 a.m., the County emailed me that "Additional documents have been compiled as part of your 2 ongoing PRRs -- our numbers 14-08 and 14-10 (initial requests copied below [MPJ:  I'll omit copies of the original requests here]) and are ready for your review anytime Monday-Friday, 8:00 am to 5:00 pm."   I went over to the County that afternoon and photographed documents provided to me.,

On Monday, April 7, at 12:17 p.m., Rheinheimer emailed me:
.  "After looking into your inquiry/complaint, which begins this e-mail string, I have determined that the reason you did not receive the e-mails you requested from Supervisor Call is simply that, in accordance with retention schedules set by the Arizona State Library, Supervisor Call had deleted those e-mails prior to receiving your public records request.  The reason you did receive the e-mails from Beverly Wilson, the department head of the Planning and Zoning Department is that at the time you submitted your public records request, she had not deleted the e-mails from her computer.
.  "The County does not have any particular policy requiring employees to delete e-mails in strict compliance with Arizona State Library retention schedules but, as you can see, it can sometimes cause confusion when two people communicate by e-mail and one deletes in accordance with the retention schedule and one does not.
.  "I hope this answers your inquiry."

At 1:53 p.m. I emailed back "Can you please point me to the specific schedule of the retention list which you have in mind?"

And at 2:33 p.m. I added
. "-- if Call's computer didn't have the documents because he deleted them, but a Planning Department employee didn't delete hers, then it's possible that other Department employees haven't deleted theirs yet. I request production from their computers, then. If the documents exist in any location, I want to see them.
. "Further, if Call merely 'deleted' his files, they may still exist on his hard drive. Has that search been made?
. "All this is, of course, independent of whether or not Call should have deleted his emails yet; and I look forward to seeing the state rule allowing that.
. "Thank you for your anticipated cooperation and adherence to the law."

On April 8, at 9:17 a.m., Rheinheimer emailed me: "Since I have completed looking into your original inquiry/complaint sent to me on March 31, I am going to forward this string to Mr. Hanson in the civil department of the County Attorney's Office to handle further public records requests. If you have any further requests, in the interest of time efficiency, please forward them directly to Mr. Hanson."

At 9:32 a.m., I emailed back:
. "If you think you've completed looking into my complaint, I think you have low standards for doing your job.
. "You appear to be passing the buck and generating more delay. Whether from you or Hanson, I look forward to seeing a citation to your authority for stating that Call kept his emails as long as required. My authority for saying he should have kept them is
. http://www.azlibrary.gov/arm/retention-schedules
in particular the comment about records being 'historically significant,' to be kept permanently when they 'Document a controversial issue.' We certainly have a controversial issue here, with public officers making substantial amounts of money from private groups who promote items that the officers will vote on.
. "I do hope that County officers aren't deleting emails as fast as they can while you pass the buck.
. "Can I get the remaining production Thursday?"

I sent a cc of that to Hanson, but got back the auto-reply that he was returning to the office on April 7 -- an inappropriate message for April 8.


More to follow. -- and now that my computer works again, here it is:

On Wednesday, April 9, I emailed Hanson again, including .  "With your office's position being that Call's computer didn't have some emails because he deletes them quickly, the result is that emails can be found only on other computers than Call's, for instance, computers of Planning Department employees.  But your last position was that there would be nothing produced from the computers of employees.  Are you going to stick to that position, or are you going to get the production requested? .  "I hope that employees haven't been deleting their emails while I've been waiting for production.  That would be especially bad since the State position is that documents involved in scandals are historical documents, never to be deleted at all. .  "I still hope to obtain production Thursday.  Please let me know in a timely fashion."
No answer from Hanson.  His silence invokes another statute:  "Access to a public record is deemed denied if a custodian fails to promptly respond to a request for production of a public record or fails to provide to the requesting person an index of any record or categories of records that are withheld from production ...."  See ARS 39-121.01(E) at . http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/39/00121-01.htm&Title=39&DocType=ARS
Also on April 9, I emailed Hanson that:
. "I am emailing you directly because your boss, Ed Rheinheimer, hasn't answered anything from me since his email yesterday referring my documents request back to you. . "With your office's position being that Call's computer didn't have some emails because he deletes them quickly, the result is that emails can be found only on other computers than Call's, for instance, computers of Planning Department employees.  But your last position was that there would be nothing produced from the computers of employees.  Are you going to stick to that position, or are you going to get the production requested? . "I hope that employees haven't been deleting their emails while I've been waiting for production.  That would be especially bad since the State position is that documents involved in scandals are historical documents, never to be deleted at all. . "I still hope to obtain production Thursday. . "Please let me know in a timely fashion."

I got some production on April 16. Then nothing.

On May 3, I emailed, to the custodian of records, and others:
. "This is a reminder of my two outstanding public records requests, 14-08 and 14-10, whose texts are at the foot of this email. . "I haven't heard from you for three weeks now, and a few statements in Mr. Hanson's email of March 19 make it necessary to clarify the law so that your response to my requests will do what the law requires. For convenience, Hanson's email is online within . http://littlebigdog.net/CallAndResponse.htm . "Hanson wrote 'We are denying your request for communications between Commissioner Weissler and her husband. These are confidential and private, except and unless any such communications are conducted as official County business.' Whatever Hanson says, Arizona law requires the person in charge of producing records to redact personal parts of correspondence, and produce the rest. Hanson's answer implies that some correspondence between Weissler and her husband includes parts which are not privileged. If you do not produce those parts, you will not be following Arizona law. I don't want you to be put in that situation. There's been no production of any correspondence between Weissler and her husband, so I'm asking you to pay special attention to this issue. . "Hanson wrote that I 'have requested all communications between Supervisor Call and "any Planning Department employee, including but not limited to Beverly Wilson, Mike Turisk, and Keith Dennis." Public Records Coordinator Lemons requested Ms. Wilson, Mr. Turisk and Mr. Dennis to provide all such communications with Supervisor Call. Ms. Lemons also asked Supervisor Call for all communications that fall within your request. However, she did not ask all Planning Department employees to conduct a search for communications with Supervisor Call, nor will she be doing so. The Planning Department has numerous employees; requesting all of them to stop work in order to conduct such a search is not reasonable.' However, Hanson's thoughts about what's reasonable are trumped by the law's statements of what's required. Hanson shouldn't tell you to disobey a law he doesn't like. The law requires you to comply with my request as to all Planning Department employees, and I'm asking you to do so. . "Hanson added that my request for emails to and from all Department employees 'is an ongoing request, which not only would require numerous employees to periodically cease work to search, but also would impose an unreasonable administrative burden on Ms. Lemons to continually track the individual searches by all of these employees.' As before, the law's requirements trump Hanson's ideas, and I'm asking you to do what the law requires. . Hanson said that 'Supervisor Call's search for "all Planning Department employees", which turned up no documents, will suffice.' Hanson is incorrect as a matter of fact. After Hanson made his statement that Call's computer found nothing, you produced documents including emails between Call and Department employees, thereby demonstrating that Call's search of his own computer will not suffice. I'd ask you to be guided by the facts, not opinions by Hanson which are contradicted by the facts. . "Hanson added 'The same response applies to your request for all communications between Commissioner Weissler and "any Planning Department employee." Ms. Lemons has checked with Ms. Weissler for such communications and will continue to do so periodically, but will not be asking all Planning Department employees to do so. The same response applies to your request for all communications between Commissioner Weissler and other Planning Commissioners. The same response applies to your request for all communications between Supervisor Call and all Commissioners.' Hanson appears to have advised you not to ask Department employees to search their computers. I'd ask you to do what the law requires. . "Hanson said that I have made documents requests 'on "a continuing basis hereafter". The County will comply with this request. However, you should be aware that continuing requests do not last in perpetuity. If, during any continuous three month period, no documents fit the continuing request, thereafter the County will presumptively no longer honor the continuing request; but, if documents have fit the continuing request, the County will presumptively continue to honor the continuing request for another three months. If continuing requests accumulate to the point that the administrative burden becomes too time-consuming and expensive, we will review whether to continue honoring continuing requests.' Hanson's ideas of what the County will 'presumptively' do are irrelevant to what the law requires. I'd ask that you follow the law. . "Thank you for your consideration of these matters, and I look forward to more productive production." Public Records Request 14-08: This is a public records request (for non-commercial purposes) for me to inspect, and copy or be allowed to copy: - all communications, written or electronic, and all memoranda or notes of the communications described herein, including material kept not only in offices or on office computers, but at any location and on home or portable computers, tablets, and telephones; and including standard emails, and other means of electronic communications including but not limited to "tweets"; - and made from December 1, 2013, through today, January 27, 2014, and on a continuing basis hereafter; and - between County Supervisor Pat Call and any Planning Department employee, including but not limited to Beverly Wilson, Mike Turisk, and Keith Dennis; - or between Supervisor Call and any Planning & Zoning Commissioner; - or between Commissioner Weissler and any Planning Department employee, or any other Commissioner, or her husband Robert Weissler; - or between Commissioner Weissler and deputy county attorney Adam Ambrose concerning the list that Weissler discusses in the email already produced and copied at http://littlebigdog.net/PNZWaterEmail1.jpg concerning the "order of the motions on the water regs," to quote her email. In anticipation of the County Attorney's assertion of attorney-client privilege for a communication with his employees, please note that no attorney-client privilege can exist with respect to this list because it was advice about a political procedure, not a legal matter, and because any hypothetical privilege was waived by Weissler's discussion in this email; - or between Commissioner Weissler and any employee of the County Attorney, so far as the communication includes matters other than legal advice.
Public Records Request 14-10: A. This is a public records request (for non-commercial purposes) for me to inspect, and copy or be allowed to copy, all communications, memoranda, or notes of communications, in any electronic or non-electronic form, kept at any location --
-- 1, between County Supervisor Call and anyone connected with any Walton family foundation. This request is based on the following: County Supervisor Call, in an email to Planning Department employee Beverly Wilson at 5:58 a.m. on January 22, 2014, said "I have a 9 AM call this morning with the Walton family foundation regarding the Mansker stormwater capture projects". -- 2, between Supervisor Call and Planning Department employee Beverly Wilson concerning the subjects to be discussed at any Planning & Zoning Commission meeting. This request is based on the following: Call, in an email to Wilson at 4:08 p.m. on December 6, 2013, concerning proposed water regulations, said "I don't care if they talk about Bisbee. My only care is that this issue gets out of the P&Z and on to the Board". B. The above requests cover items from October 1, 2013, through February 14, 2014, and continuing thereafter. C. I ask that this request not be "stalled." This request is based on the following: Planning Department employee Wilson, in an email to BOS Clerk Arlethe Rios, deputy county attorney Adam Ambrose, and Deputy County Administrator James Vlahovich at 8:28 a.m. on January 2, 2014, referring to a request by me to distribute my written "conflict of interest" analysis to the Planning & Zoning Commissioners, said "I've stalled for Adam's opinion". On May 5, the custodian of records answered, with copies to others:
. "I am compiling documents for these 2 ongoing requests. When they are ready for release I will contact you via email.
. "Any concerns you have regarding what the law requires should be directed to Mr. Rheinheimer or Mr. Hanson."

And later on May 5 I answered: "Thanks for your comments, Kim. I don't have concerns regarding what the law requires, I have concerns that you will not do what the law requires. If you follow advice from the County Attorney's Office, you won't have personal liability, but that doesn't mean that the County isn't heading for hot water. The chances of hot water increase as the divergence of CAO advice from the statutes increases. I'm hoping you will take that broader view of the situation. As far as your advising me to contact Rheinheimer or Hanson, you might have noticed that they were open cc's on my email to you. I await further production from you in accordance with the law."

I do wish that Hanson, Rheinheimer, and possibly others, would stop using the custodian of records in order to avoid discussing the issues. But my wish is, alas, fading message by message.