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

Bay Stewardship Alliance achieves important victory over wayward agency currently under state audit

SAN FRANCISCO, Calif. (May 7, 2019) – The San Francisco Bay Stewardship Alliance (Alliance) has secured a complete victory against the Bay Conservation and Development Commission (BCDC) in a legal battle concerning the release of public records.

The Superior Court of California entered a judgment in favor of the Alliance and against BCDC, 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.”

This comes as a state audit of the BCDC is nearing conclusion, with findings to be released next Tuesday, May 14, and a public meeting to discuss the findings set for Thursday, May 16 in San Francisco.

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 to reform the BCDC,” said Bob Wilson, co-founder of the Bay Stewardship Alliance. “This costly legal battle is the latest example of the BCDC’s blatant disregard for the community’s right to know and the state’s public records law.”

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.

“Our legal challenge is yet another example of how poor BCDC management practices and lack of adequate governance have wasted taxpayer and private resources,” Wilson said. “BCDC has lost its way and is in need of urgent reform. We will continue to fight on behalf of the community and the environment until we see leadership changes and meaningful reform of the BCDC.”

During the litigation, the Alliance served written discovery and deposition subpoenas to test BCDC’s claim that it had no additional records. BCDC stonewalled, claiming 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 emails deleted by relevant staff.

Navi Dhillon of Baker Botts LLP, recognized by Law360 as one of the top environmental attorneys under 40 in the United States, represented the Alliance in the litigation and stated that 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 establishing that a government agency has made inaccurate statements is always an uphill battle but the Alliance did it here,” Wilson added. “Navi has been our trusted legal advisor throughout this prolonged process. His dedication and hard work has served us and our community well. We look forward to his continued counsel as we at long last we receive the information that the BCDC should have provided last summer.”

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

In late 2018, the BCDC’s enforcement program claimed it had more than 250 open cases against businesses and municipalities along San Francisco Bay, and due to the backlog, it would consider an amnesty program for those entities.

But in several cases analyzed by the Alliance, violations claimed by BCDC staff could be seen as dubious, including the shape of picnic tables, installation of a metal door mandated by a local fire department, and the docking of boats owned by first responders.

Enforcement activities by BCDC staff have continued in spite of the ongoing state audit, including the issuance of fines, as well as discussion of the doubling of permit fees, which could be used to fund additional enforcement staff. The Alliance has made repeated calls for both activities to be suspended pending the completion of the state audit and implementation of needed reforms.

“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,” Wilson said. “We believe the records we have requested will bear this out.”

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About the San Francisco Bay Stewardship Alliance

The San Francisco Bay Stewardship Alliance includes citizens and employers who care about our Bay. We promote informed conservation and responsible development of the San Francisco Bay shoreline to benefit the community at large so that it can be enjoyed now, and in the future.

The Alliance was formed in 2018 to mount a significant legal and legislative challenge against the Bay Conservation and Development Commission (BCDC), currently the subject of a state legislative audit, for going beyond the scope of its mandate. Visit us at www.baystewards.com.

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