Tucson, GCU, El Rio public records still not public

Last week, attorney Bill Risner presented closing arguments in the case against the City of Tucson in which plaintiffs sought public records in the TREO/Grand Canyon El Rio Golf Course proposed transaction.

The plaintiffs have been requesting documents since May 13, 2013. For nearly a year, the City has fought the plaintiffs while slowly releasing select documents, which according to Risner should be released in a timely manner.

In May 2013, plaintiff Cecelia Cruz requested the documents and even offered to come into City offices to review the document she sought. At the time, she advised the City Council that the records were of immediate interest to the residents and noted that the documents time sensitive due to the fact that the sale had become appoint of contention for many in the neighborhoods surrounding the golf course.

In July 2013, in the first trial attorney for the City advised the Court that the City “fully responded to the plaintiff’s public records request and had turned over all relevant and publically accessible documents.

They had not. Since that time the plaintiff has received additional 2, 400 pages

In the hearing this week, the City’s attorney Dennis McLaughlin, told Pima County Superior Court Judge Christopher Staring, that the City had in fact not turned over the documents. He claimed that at the time he made the assurances he believed that the City “probably” turned over the documents.

The City had sought and won a protective order preventing Bill Risner from deposing any city employees by stating in their protective order filed July 8, 2013 states: “The City has now fully responded to the Plaintiff’s public records request, except that it has withheld approximately seven documents from release.”

Exhibit 002 El Rio Bill Risner Closing Argument 4.01.14.pdf

In a case against Maricopa County Sheriff Joe Arpaio by the Phoenix News Times the Court found that records must be promptly turned over and if the requesting party does not receive a response prompt response then the access is deemed denied.

Risner acknowledged that if a party were seeking documents at a particularly busy time, such as seeking tax information from the IRS during tax season, the party might expect some delay, but he argued that was not the case for the City of Tucson, or the plaintiffs. The party, Cecelia Cruz, who represented a coalition of interests, needed the documents because time was of the essence. Judge Christopher Staring

Risner pointed out to the Court that Arizona law places the burden on the agency responsible for the documents to prove that it did give a prompt response. In other words, the agency has the burden to show that it made a good faith effort to search for the requested documents, and discharge its burden by establishing that the search for documents was adequate to provide the all of the documents called for in the scope of the request.

In the Arpaio News Times case, the Court found that the government must go so far as to prove that requested documents do not exist.

Risner directed the Court’s attention to the testimony of Christopher Kaselemis; program director Economic Initiatives for the city of Tucson. On November 18, 2013 Risner asked Kaselemis if he made efforts to locate the documents he had related to the proposed sale. Kaselemis said that when he receives a public records request he checks with the IT department. He said that he had met with McLaughlin several times and had him his notes and all “my records and I know he’s done the same with other people who have been involved with the sale.”

Kaselemis claimed that he had a compilation of meeting, “a couple folders with stuff from Grand Canyon stuff, and from a TREO meeting. I think I had some meeting notes it was a compilation of, you know, a substantial amount of stuff.” He said that he had the material that “you would expect” to see working on a project like Grand Canyon. He estimated that he had “about 30 pieces of paper plus some stuff from TREO.”

When asked if he maintained a calendar, Kaselemis responded that he did. When Risner asked him of other staff kept calendars, he responded yes.

Risner reminded the Court that Don Parslow, deputy director of the City of Tucson IT Department, said that the IT department did nothing to locate emails covered under the public records request until much later. According to Parslow, the first time he knew about Cruz’s request was on August 15, 2013.

Parslow told Risner that he had not received the request from the City Attorney’s office for documents until September 12, 2013. Parslow said that had he received a request, he would receive all the attachments and the “CC’s” if they were available and that he would then be turn them over to the City Attorney’s Office.

Parslow said that the City employs a rotating time limit of 90 days. Unless they are printed out, or stored in a file, they can disappear. Risner told the Court that Parslow said he would be able to find any emails from January or February 2013, “just looking at the parameters we discussed. I wouldn’t think we be able to do that.”

As a result, the City’s delays might have resulted in documents requested months before from being dumped before the plaintiffs could gain access to them.

Risner also advised the Court that Parslow testified that he had never been asked for the documents’ metadata, and that the City of Tucson never informed the IT department that Miss Cruz requested the metadata.

While residents were denied documents, so was the biggest newspaper in Arizona, according to Risner. In closing arguments, Risner noted that in February 2013, Josh Brodesky with the Arizona Republic asked for all records regarding Grand Canyon University. (See Exhibit 005 El Rio Bill Risner Closing Argument 4.01.14.pdf link below.)

He wrote to the City of Tucson, “I strongly believe that the foregoing documents are a matter of public record and are of vital interest to the public because they involve the behavior of employees. Since this information is valuable and diminishes greatly over the over time, I would appreciate your communicating with me by telephone.

Michael Randall sent an email to Mike Rankin, the City of Tucson’s attorney, “Hi Mike, Below is Josh’s public records request. Let me if you need any further information.”

Risner told the judge that the City turned nothing over to the Arizona Republic, or Josh Brodsky. “Just like they provided no Information to Cruz,” said Risner.

Risner suggested to the judge, that had the City compiled the records for the Republic, it would have greatly have facilitated their response to Celia Cruz.

Risner said the City was certainly aware of his clients’ assertion that time was of the essence. In an email from McLaughlin to employees in the City manager’s office, it is noted that Cruz was “now calling us regularly coming down to review to the documents “as time is of the essence. “Risner said the email demonstrates that the City was aware that time was of the essence.

The lawsuit was filed by El Rio Coalition II through Cecilia Cruz did against Richard Miranda, the City Manager and Roger Randolph, the City Clerk, who are responsible for honoring public records requests. It was not filed against City Council members because Cruz and the coalition believed that council members would then be free to jump in and defend residents and honor our public records requests, and demand accountability from city staff.

So far, that hasn’t happened. The City council members seem to have circled the wagons in protecting those behind the failed land deal.

Without the documents, it is difficult to determine who are all the parties involved on pushing the land deal.

The sale of El Rio divided the neighbors of El Rio. That fight went city-wide when Tucson City Councilman Steve Kozachik complained about the fact that the University is Christian university.

So while progressives and conservatives fought over religious freedom and discrimination, City officials began to back-pedaled on the TREO-led hand over of public lands to private entities.

Taxpayers across the City were completely left out of the discussion; in part because they were busy working to pay their taxes, but mostly because they were never welcomed to the table.

Now that the University deal is dead, Risner, Cruz and the Coalition are focusing on the real issue; sweetheart deals made with little community input and virtually no transparency or accountability.

The residents of Tucson await the judge’s decision in the matter.

Exhibit 002 El Rio Bill Risner Closing Argument 4.01.14.pdf
https://drive.google.com/file/d/0B2TKmkSNAkCfdzg5V0pSbldxSDg/edit?usp=sharing

Exhibit 002 El Rio Bill Risner Closing Argument 4.01.14.pdf

https://drive.google.com/file/d/0B2TKmkSNAkCfak5mZFp4aGt0dm8/edit?usp=sharing

Exhibit 003 El Rio Bill Risner Closing Argument 4.01.14.pdf

https://drive.google.com/file/d/0B2TKmkSNAkCfak5mZFp4aGt0dm8/edit?usp=sharing

Exhibit 004 El Rio Bill Risner Closing Argument 4.01.14.pdf

https://drive.google.com/file/d/0B2TKmkSNAkCfSFhkUjIxWHVObUE/edit?usp=sharing

Exhibit 005 El Rio Bill Risner Closing Argument 4.01.14.pdf

https://drive.google.com/file/d/0B2TKmkSNAkCfc0RNWERfMkRLNFE/edit?usp=sharing

Exhibit 006 El Rio Bill Risner Closing Argument 4.01.14.pdf

https://drive.google.com/file/d/0B2TKmkSNAkCfWlB1MjA3dDFBY2M/edit?usp=sharing