Part of the Bay Area News Group

News group’s fight to obtain district documents heading to court this month

By Theresa Harrington
Sunday, March 9th, 2014 at 11:43 am in Concord, Education, Mt. Diablo school district.

The jury trial for former Woodside Elementary teacher Joseph Martin — who has been charged with 150 counts of molestation involving 14 former students while he taught at the Concord campus in the Mt. Diablo school district — has been postponed until May.

But, the Bay Area News Group, or BANG, lawsuit seeking district records related to an internal report about suspicions of abuse raised in 2006, along with any other relevant documents, is set to be heard March 19 in Contra Costa County Superior Court.

Attorneys for both sides have been busily trading legal briefs and declarations bolstering their opinions during the past month.

The district is staunchly defending its decision to withhold the documents sought based on a variety of exemptions asserted under the California Public Records Act. The newspaper group disputes these asserted exceptions and is asking the court to require the district to list everything that is being withheld and to review the documents privately, then decide whether or not they should be released.

Here’s a rundown of the arguments by both sides:

The district asserts that every document being withheld is prohibited from public disclosure because it contains identifiable education information for a minor, education records, attorney-client information, and attorney work product information, as well as information protected by individual privacy laws. The district asserts that a 2006 internal report prepared by outside attorney Mark Williams related to alleged improper behavior by Martin is exempt from disclosure because it was provided to police in confidence and police compelled the district to provide it as part of the police investigation of Martin.

BANG attorney Duffy Carolan counters: “It is inconceivable under the strong body of law governing access to records of public employee wrongdoing that all responsive records pertaining to complaints known to Mt. Diablo Unified School District to at least suggest child abuse by Woodside Elementary School teacher Joseph Martin would be exempt from public disclosure in their entirety.”

The district’s “vague and unsupported privacy arguments are patently insufficient to establish that any record it is withholding is exempt,” Carolan says, in a court document filed Feb. 26. In addition, she says the district failed to explain why removing the names of students would not suffice to protect student privacy and she disputed the district’s claim of attorney-client privilege related to the 2006 report.

“In sum,” Carolan wrote, “the district has utterly failed to meet its heavy burden of proof in this case to overcome the strong public interest in access to records that will shed light on the district’s handling of serious allegations of wrongdoing that have already imperiled the well-being of its students and raise legitimate concerns about student safety throughout the district.”

Although the district has not named the documents it is withholding, Carolan asserts that a paper trail leading to the decision to call police in 2013 must exist. She suggests that documents being withheld could include: an April 24, 2013 complaint from the mother of a Woodside Elementary student to then-Principal Jenny Cronan, notification from Cronan to the assistant superintendent for personnel about the complaint, direction to call police, and notification to Martin that he was being placed on administrative leave.

Related to the 2006 incident, Carolan suggests documents being withheld could include: a report received by then-Principal Jennifer Sachs that Martin was “focusing” on some students over others, Sachs’ notification to the assistant superintendent for personnel about this complaint, the conclusion by the district that an investigation was necessary, records relating to an internal investigation into “alleged suspicious behavior” by Martin, writings detailing the suspicious behavior, records showing Sachs was “tasked with conducting the investigation,” and the 2006 letter provided by Williams.

Links to court documents filed by both sides are below:

BANG Request for In Camera Review of MDUSD documents: https://docs.google.com/a/bayareanewsgroup.com/file/d/0B6mS2O1_NKceOWJVWVdYOTVDbXc/edit

Proposed Order for In Camera Review of MDUSD documents: https://docs.google.com/a/bayareanewsgroup.com/file/d/0B6mS2O1_NKceOWJVWVdYOTVDbXc/edit

MDUSD opposition to BANG petition: https://docs.google.com/a/bayareanewsgroup.com/file/d/0B6mS2O1_NKceV2JFU29NUlVqeDQ/edit

Declaration of MDUSD attorney Deb Cooksey: https://docs.google.com/a/bayareanewsgroup.com/file/d/0B6mS2O1_NKceVlJPYnB1bU9ZZUk/edit

Declaration of outside attorney Mark Williams: https://docs.google.com/a/bayareanewsgroup.com/file/d/0B6mS2O1_NKceOWJVWVdYOTVDbXc/edit

BANG reply to MDUSD: https://drive.google.com/file/d/0B6mS2O1_NKceNDZ2THNuaU1ya3M/edit?usp=sharing

Do you think the court should review the documents being withheld to determine whether or not they should be released?

MARCH 18 UPDATE:

Here is the judge’s tentative ruling:

“29. TIME: 9:00 CASE#: MSN13-1551
CASE NAME: BAY AREA NEWS GROUP VS MT DIAB
SPECIAL SET HEARING ON: WRIT OF MANDATE SET BY STIPULATION/COURT
* TENTATIVE RULING: *

Petitioner Bay Area News Group’s petition seeking further disclosure of records is granted. It is premature to rule on the exemptions and privileges asserted by Respondent until a complete list of the specific documents being withheld is produced and correlated with the exemption and/or privilege claimed by the District. By April 2, 2014, Respondent is ordered to create a list of each responsive document or portion thereof being withheld, describing it in detail and for each document being withheld, Respondent must discuss the consequences of disclosing the sought-after information. Conclusory or boilerplate assertions that merely recite the statutory standards are not sufficient. See American Civil Liberties Union of Northern California v. Superior Court (2011) 202 Cal.App.4th 55, 82-85; State Board of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1192-1193.

The court rules on Petitioner’s objections as follows:

Declaration of Deborah Cooksey

Cooksey Decl., paragraph 11: Sustained – hearsay

Declaration of Mark Williams

Williams Decl., paragraph 3, starting with “I” and ending with “appropriate”: Sustained – relevance
Williams Decl., paragraph 3, starting with “One” and ending with “conduct”: Overruled
Williams Decl., paragraph 4, starting with “That” and ending with “privileged”: Overruled
Williams Decl., paragraph 4, starting with “Further” and ending with “communication”: Overruled”

Here are the objections: https://drive.google.com/file/d/0B6mS2O1_NKceWnRFU2JnUkprd1E/edit?usp=sharing

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  • g. de la verdad

    What a ‘crock’! “The District released the Memorandum to the Police for the sole purpose of ensuring the safety of its students; accordingly, the safety of its student is one [of] the purposes for which the District retained Mr. Williams.”
    But then Meyers Nave, et al conveniently failed to mention that the District and a dozen or so public officials failed miserably to protect students for the next 7+ years, by burying the Williams opinion, and leaving the Martin door (literally and figuratively) closed to public view.

  • g. de la verdad

    Cover the District’s ‘ass-ets’ and leave the kids to defend themselves, huh?

    “Because the dominant purpose of the communications between the District and Mr. Williams was to determine the lawfulness of the District’s conduct,…”

    Did Williams suggest the District hide their findings, put a principal in charge of ‘handling the issue’ and that would make everything they did all legal and nice?

    Or did Williams point out Mandated Reporter laws along with other legal opinions?

  • g. de la verdad

    NEW item added to this year’s 2nd Interim: “S1. Contingent Liabilities

    1a. Does your district have any known or contingent liabilities (e.g., financial or program audits, litigation, state compliance reviews) that have occurred since first interim projections that may impact the budget? — Yes

    1b. If Yes, identify the liabilities and how they may impact the budget:

    Claims within the District’s self-insured retention layer. The District’s SIR is $250,000″

    Wasn’t it just $100K a year ago when Bryan’s computer was supposedly “stolen”. We can only pray to get by on $4 or $5 million in Retention only expenses over the next couple of years.

  • Doctor J

    Bryan Richards admits Board has secretly approved $2 Million in raises to Administrators in violation of Brown Act. Fasten your seat belt and “brace for impact”, as Sully would say. As G points out comparing the Second interim with the First Interim is revealing. The second Interim in Response to S-8, says management negotiations are now settled — interesting since the board has never authorized any negotiations with
    DMA or administrators as required by the Brown Act. That S-8 response sends you down to S8C, in pp. 20-24. First interim shows unsettled negotiations with administrators. Second Interim shows settled — never been before the Board to get authorization to negotiate NOR get settlement approval. 2nd Interim shows settlement to
    Administrators to be $2.137 Million over 3 years with $971,510 the First year (3% retro to July 1 PLUS 2% for those working on Feb 26). MORE SIGNIFICANTLY, there will be more raises for administrators as it says for both year 14/15 and 15/16 additional amounts “not yet settled”. PLUS, yes there is more, Step and Column is an additional 1.5% PER year !!!! My analysis on Teachers and Classified to follow in an edit.

  • Doctor J

    Willie Mims is going to be P.O. — Richards admits that Teacher increases will come in part from money generated by ELL and Socio-economic Additional monies under LCFF. Richards says “All funding sources will be expected to pick up the additional commitments.” Can’t wait to hear Willie tomorrow night. when he lets the Board have it for taking poor kids money away from them, he will be like the pit bull that bites them in the a$$ and gets lock jaw ! Go Willie !!

  • Doctor J

    Was Richards truthful when he said that the Contingent liabilities now disclosed in the 2nd Interim “have occurred since the first interim” ? No, Richards just failed to disclose them in the 1st Interim even though they occurred before the 1st interim. NOW, Richards discloses that the $250,000 “deductible” for MDUSD has been increased to $1,000,000 per year for years 14/15 and 15/16.

  • g. de la verdad

    They can always just close another “poor” neighborhood-school. Think what that will save. Save? Nevermind.
    Speaking of closed schools…how much is Taber paying in rent for their office space at Holbrook? I’m guessing it is just about the same as what SunPower paid for monthssss…zilch.

  • Doctor J

    What sleight of hand did Richards use to get MDUSD from a Dec 11 Qualified Certification to a March 12 Positive Certification after handing out tens of millions in salary and benefit raises to Administrators and teachers and classified ? One, trick, and Bryan could tells us more is that he “massaged” the ADA numbers slightly to decrease the “reserve” necessary for the District. In the first interim he had the ADA at 29,970 and now he pumped it slightly to 30,039.47, which barely mains less of a reserve required.

  • g. de la verdad

    LCFF is easy to massage…but now there is a NEW reserve for Liability Insurance being added. No accounting next year for Eagle Peak poaching another 30 or so kids out of the District?

  • Doctor J

    Low-lights of teacher and classified wage/benefits negotiations. Teachers negotiated wage increases (separate from benefits) totaling $16.294 Million over 3 years: 13/14: $3.491 Million; 14/15: $4.655 Million; 15/16: $8.147 Million. Teachers get an additional $31.229 Million over the next three years for Medical,Dental,Vision: 13/14: $4.458 million; 14/15: $11.440 million; 15/16 $15,331 million. Plus two additional work days “without kids” — so the educational or learning year isn’t increasing.
    Classified: not so good which is why 500 employees just decertified and went with the Teamsters, who are yet to negotiate. classified will get $663,285 additional for each of the next three years, including this year, but no return to their prior hours. So expect the Teamsters to be tough, likely strike to require the Teachers who are brooding like banty-roosters with their raises, to obey their picket lines or suffer the Teamster consequences of crossing a picket line. the Teamsters want to prove they can get better raises than Local One.
    And a little off point! but Mary Bacon, is shown to have been paid in Feb for consulting a whopping $38,250.00. she has an amazing billing machine.

  • Frustrated

    Just wondering why Dr J is so opposed to teachers getting their first real salary increase in a long time. Many teachers are just trying to take care of themselves and their families basic needs

  • Doctor J

    BANG filed objections to evidence on March 14. Do you have an update ? Is there a tentative ruling published today ?

  • tmharrington

    Yes. I will post the tentative ruling as an update to this blog.

  • Doctor J

    The court seems to have already lost its patience with MDUSD’s “conclusory or boilerplate” objections. I would guess that on April 2 the court will order release of certain documents and require the district to produce others to the court for “review” and determination of public disclosure. We are nearing the end of some administrative careers as the truth gets closer to be disclosed. Perhaps some elected careers too. Speaking of former elected officials, I notice that the contractor’s license of Eberhart Construction and Gary Leroy Eberhart are currently under contractor licensed board suspension. What happened to “small potatoes” Eberhart ?

  • tmharrington
  • Doctor J

    Did Barbara Oaks & Co accept the ruling or challenge it in court this morning ? “Granted” means MDUSD lost and BANG won. The secret documents will be revealed and the district perps will be revealed. Oh, and Duffy will be awarded TENS of THOUSANDS of DOLLARS not out of the pockets of OAKS, HANSEN, LAWRENCE, MAYO or DENNLER, but out of the classrooms intended for teaching children. Hey Lynne, let the teachers pay for the projector bulbs. Reminds me do the Nursery Rhyme: Five little monkeys jumping on the bed and one hit his head. the doctor said, “No more monkeys jumping on the bed.”. The final cost to the CHILDREN of MDUSD will be over $100,000 out of their pockets for the Board’s UNANIMOUS arrogance of opposing BANG’s Public Record request, including both MDUSD’s attorneys and BANG’s attorneys. Do you — Barbara, Cheryl, Brian, Linda, Lynne — call that TRANSPARENCY ? Please stop acting like monkeys and behave like Trustees.

  • Doctor J

    April 2 is deadline for district to identify with specificity the withheld documents — the public should have a good idea at that time why the district is withholding the documents. April 30 is the new court date for deciding. This puts the Board in a mess as far as approving new administrator contracts without the public being able to weigh in on the culpability of current administrators and the handling of the Martin fiasco.

  • Doctor J

    MDUSD Board could learn a little about reporting out closed session votes from the Tamalpias USD failure to report out closed session votes according to the Brown Act. Funny business in MDUSD on the Martin case ? When did the Board take action to defend the BANG lawsuit ? The agendas only list information not action. Since there was no reporting out of a vote to withhold documents under the PRA, the decision must have been unanimous — but when did they consider it and report it out ?

  • Wendy Lack

    Thanks for the update, Theresa. Will stay tuned for next chapter, after District produces docs on April 2.

    Happy Sunshine Week! http://www.sunshineweek.org/

  • Doctor J

    Wendy, don’t count on the the district disclosing any docs on April 2 — I think they will just produce the list of documents and specific reasons for withholding. Wait until April 30.

  • Doctor J

    The latest Cody deception: Meas C back on front page but all minutes cut off at page 1 1/2. Haven’t checked other documents. What a snake oil salesman trick !

  • Doctor J

    Privilege Log filed yesterday — Theresa, can you please post it ASAP !!

  • tmharrington

    I got the logs and will post them. The district only listed two memos to police in its non-attorney-client privilege log, but claimed plenty of exemptions. It also apparently filed a log of documents it considers confidential and privileged due to attorney-client or attorney-work product privileges with the court, but did not disclose that list to BANG.

  • tmharrington

    Here is a new blog post with the district’s response to the court order requiring it to produce logs of documents being withheld from BANG’s PRA: http://www.ibabuzz.com/onassignment/2014/04/04/mdusd-logs-documents-related-to-teacher-molestation-arrest-withheld-from-bay-area-news-groups-public-records-act-request/