Earlier this month, District Attorney candidate Bob Brewer asked a federal judge to release a letter of recommendation that DA Bonnie Dumanis wrote on behalf of Edward Susumo Azano, the son of a wealthy Mexican businessman at the center of a campaign-finance scandal. The letter, dated Sept. 28, 2012, and written on official District Attorney letterhead, was addressed to University of San Diego president Mary Lyons; it had been sealed as part of the U.S. Attorney's corruption probe. ---
The letter's significant because Dumanis has sought to distance herself from Azano, telling U-T San Diego that she'd met him only once. The judge declined to unseal the letter, but CityBeat and other media outlets put in requests to see it under the California Public Records Act. (I asked for all letters of recommendation the DA's written in her official capacity over the last four years.)
The District Attorney's office responded today, listing a number of reasons why the letter won't be released.
Dear Ms. Davis:I am a designated representative of the San Diego Office of the District Attorney responsible for compliance with the California Public Records Act (hereafter "CPRA"). We are in receipt of your June 3, 2014, email request for records. You requested: "All letters of recommendation or letters of reference written by the District Attorney in her official capacity between January 1, 2010, and May 30, 2014."The records you seek are exempt from CPRA disclosure because they are not public records. According to California Government Code section 6252, a "public record" consists of "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." (Gov. Code, § 6252, subd. (e).) Therefore, the CPRA applies only to "public records," meaning that the request for information must relate to the conduct of the public's business. The letters you requested are not "public records" since they do not relate to the conduct of the public's business.In addition, some are exempt from disclosure on the ground that they are personnel records. Government Code section 6254 (c) specifically exempts "personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy."Further, individuals on behalf of whom the letters were written have a privacy interest in the letters. The California Constitution recognizes the right to privacy. (Cal. Const. art. 1, § 1.) Moreover, CPRA law expressly recognizes the right of individuals to privacy. (Gov. Code, § 6250.) Further, Courts of Appeal have very recently held that in recognizing an individual right to privacy in the CPRA, "the Legislature did not distinguish between the privacy rights of [government] officials and that of third parties whose personal information may be disclosed when records are accessed." (City of San Jose v. Superior Court (2014) 225 Cal.App.4th 75, 85.)Furthermore, the Family Educational Rights and Privacy Act (FERPA) recognizes or affords certain privacy rights to academic records.In addition, the Federal Court has issued a protective order in a pending federal litigation that includes a letter you requested.In closing, I note that in maintaining the lawful confidentiality of its investigative files, this Office claims, enforces and applies any and all applicable exemptions, privileges, and proscriptions against public disclosure of records, including, but not limited to, those listed in Article 2 of Government Code, Title 1, Division 7, Chapter 3.5, and those privileges established by the California Evidence Code and the Federal Rules of Evidence.Sincerely,BROOKE E. TAFRESHIDeputy District AttorneySan Diego Office of the District Attorney