“Based on your agency’s history of deleting audio recordings of board meetings, it has become necessary for reporters to record the meetings because your agency cannot be trusted to carry out this basic governance function.Now that all board members are on notice of the fact that the public must perform this function, any member’s participation in a meeting at which the public has been thwarted in its efforts to make a recording will subject the member to criminal prosecution.” – Attorney Cory Briggs, in a letter to the CVUSD.
By Miriam Raftery
Photo: ECM's recording device, a cell-phone sized recorder on a small tripod next to the front left seat, is clearly not obstructive or disruptive at the May 7 board workshop.
May 17, 2019 (El Cajon) – “Despite lawfully occupying open seats in the front row, reporters have been threatened with arrest, removal, or both if they did not move to the back of the room,” states a letter sent by Attorney Cory Briggs of Briggs Law Corporation to Cajon Valley Union School District yesterday on behalf of East County Magazine. His letter makes clear that such conduct is “flatly illegal.”
On May 7, Ryan Love, safety and security officer for the district, ordered ECM contributing editor Paul Kruze and editor Miriam Raftery to move to the back, where we explained that audio recordings would not turn out due to noise from an air conditioner and the audience. We refused to comply with this illegal request.
On May 14, Love again demanded that Kruze move from the front row to the back, and Kruze again refused. Kruze says he was told that an El Cajon Police officer would be called to arrest him.
Photo: Paul Kruze and MIriam Raftery received the Gloria Penner Award for political reporting from Society of Professional Journalists in San Diego last year for our reporting on El Cajon Councilman Ben Kalasho.
ECM began recording meetings ourselves and posting the audio files on our news site after the district repeatedly violated California’s open government laws by destroying its recordings of meetings and refusing to comply with multiple public records requests for tapes of several meetings, as we previously reported. Our initial request was made to obtain audio of public comments includng a citizen who criticized the board over schools failing state standards, accordin to the state's Dashboard evaluations. We wanted to quote his exact words, but could not, since the district destroyed the audio of that and subsequent meetings. State law allows destruction after 30 days, but not if a public records request has been made before then.
An attorney from Californians aware sent a letter to the board March 19 regarding Brown Act violations and the board sent a reply indicating it would comply in the future, but has not done so. Despite passing a board policy to retain recordings for a year and make copies available to the public on request, new requests for recent meeting tapes were not fulfilled, with the district’s lawyer Dan Shinoff claiming ECM's new requests went to spam. Weeks later, we still have not received any audio files.
Concerned that the board could eject our reporters or bar them from future meetings merely for standing up for our legally protected rights, ECM contacted Briggs about the apparent violations of the Ralph M. Brown Act (California's open government law) and First Amendment freedom of the press infringement.
A member of the public videotaping the May 7 meeting for the Santee Community Connection, intimidated by Love’s demand, did comply and move to the back of the room. His video was live-streamed on Facebook, where multiple viewers asked that the audio be increased because they had trouble hearing the recording, proving our point.
Govt. Code section 5493.5(a) states that anyone attending an open public meeting of a local agency has the right to record audio, video or still photos unless the legislative body makes a reasonable finding that it obstructs view or disrupts proceedings. The photo in this article indicates that the small recording device was not disruptive or obstructive in any way.
Moreover, blocking the press or public from recording meetings or disseminating information is not merely illegal, but also a crime. Got. Code section 54959 states that “Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor.”
Briggs’ letter states pointedly, “Based on your agency’s history of deleting audio recordings of board meetings, it has become necessary for reporters to record the meetings because your agency cannot be trusted to carry out this basic governance function. Now that all board members are on notice of the fact that the public must perform this function, any member’s participation in a meeting at which the public has been thwarted in its efforts to make a recording will subject the member to criminal prosecution.”
His letter demands that the district provide “unconditional commitment” to cease and desist its violations, adding, “My client reserves its right to file suit and seek all available relief in the absence of a timely unconditional commitment, without further notice to your agency.”
The letter was e-mailed to Superintendent David Miyashiro and to Jill Barto, clerk of the board and board member. Barto has confirmed receipt.
Briggs has a history of successful litigation in public interest and government accountability cases.