Paso Robles councilman files cross-complaint against Tribune, city in records case
Paso Robles City Councilmember Chris Bausch filed a cross-complaint against The Tribune and the city of Paso Robles, alleging that The Tribune's public records act requests — which are at the center of an ongoing legal battle between The Tribune, Paso Robles and Bausch — were 'vexatious and deceptive.'
He then claimed the city's refusal to provide him with legal representation has resulted in his inability to find a lawyer, which he described as an 'undue hardship.'
In another document, Bausch requested that the lawsuit be dismissed and, if it is not dismissed, he requested 60 additional days to find legal counsel.
The cross-complaint was filed alongside his formal response to the Tribune's lawsuit and his case management conference statement, which he submitted Friday ahead of The Tribune's next hearing date on April 30.
The cross-complaint 'completely lacks merit,' according to the Tribune's attorney, Karl Olson, who added that it's unusual for a defendant in a public records lawsuit to initiate a cross-complaint against the entity or individual that requested the records.
It will also drive up the cost of the litigation, Olson said.
'You can't get anything from a Public Records Act plaintiff unless their case is, quote, 'clearly frivolous,'' Olson said. 'Our case is definitely not 'clearly frivolous.' In fact, we wouldn't have filed it unless we had a good case. It's worth noting that the city itself said that he had refused to search unless and until a court ordered him to do so.'
Neither Bausch nor Paso Robles City Attorney Elizabeth Hull responded to The Tribune's request for comment on this story.
It is unclear from Bausch's cross-complaint what exactly he is suing The Tribune for, but he has marked that he would like The Tribune and/or the city to pay for his legal fees and any other damages.
In his complaint, he wrote the 'number of public records requests are vexatious and deceptive as to dates and as to volume of actual requests. (The Tribune) fails to take into account (The Tribune's) own responsibility for the length of time it is taking (Bausch) to fully respond to (The Tribune's) over seven hundred individual requests.'
An identical statement was written in his case management conference statement, and a nearly identical statement was written in his formal response to The Tribune's lawsuit.
The Tribune has not submitted 700 hundred public records requests.
It submitted 19, with the only five outstanding requests being records from Bausch's personal devices of which he has refused to disclose. The Tribune filed its lawsuit after the city said Bausch was refusing to search and disclose documents unless ordered by a court to do so.
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Bausch, however, claims that is a lie, that he has not refused to search and is, in fact, doing so currently. He says he's been directed to conduct 700 searches, but other than turning over one recording, he has produced no records responsive to the requests.
As a result, The Tribune turned to the courts for help.
'We reasonably felt that we had no choice but to bring the lawsuit,' Olson said. 'I know after the lawsuit was filed he denied making that comment. But when you've got a city telling you one of their own councilmen is refusing to search, I think it's reasonable to take that at face value. And we still haven't received records, even though Mr. Bausch has said that he's searching.'
In regards to the city, Bausch believes it should be responsible for paying his legal fees.
'The City of Paso Robles' failure to provide legal counsel to Defendant Bausch based on Ms. Hull's misleading premise has created an undue hardship for Defendant Bausch in retaining legal counsel,' he wrote in the cross-complaint.
According to a March 20 email from Hull to Bausch, Hull wrote the city was declining him legal counsel because of his 'refusal to cooperate with the City responding to Public Records Act requests, to provide your personal devices to the City for review, to timely complete a search of your personal devices on your own, or to sign the numerous affidavits that have been presented to you regarding responding to the outstanding PRA requests.'
Bausch was invited to participate in the City Council closed-session meeting discussion of whether the city should represent him, but left the discussion early, Hull wrote in the email.
Bausch claims Hull's statements are false.
Bausch's filings come just two days after he admitted to withholding documents on Cal Coast News reporter Karen Velie's radio show 'Sound Off.'
'I want to make very clear that I am fulfilling the records requests. It's not that I'm not doing those searches. I am searching for the records that The Tribune has requested,' Bausch told Velie on Wednesday. 'What I'm not doing is turning them over to BBK.'
BBK is the law firm that represents the city.
'I don't think I need to give (the records) to BBK, the city's attorney, if the city isn't going to represent me,' Bausch continued on the radio show. 'I think I should just either give them to my attorney, or if I don't have an attorney, I should just give them directly to The Tribune.'
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During an April 9 court hearing, San Luis Obispo Superior Court Judge Michael Kelley said the city did not have to require an affidavit that says the search is complete until the search is actually complete.
'I can't understand how, if the court has ordered a rolling production, you could be required with the first tranche to state under oath that you provided everything,' Kelley told Bausch during the hearing. Kelley also told Bausch the city has a right to review all the records that are responsive to The Tribune's requests.
Despite the April 9 statements from Kelley, Bausch continues to cite the affidavit issue as a reason why he has not produced responsive documents. He cited this reason in Velie's Wednesday show and also in his Friday statement filed in court.
On the radio show, Bausch said he believed the judge stated that there was not a decision made as to whether he should give records to the city but that he did not have to sign an affidavit yet.
He said on Velie's radio show he is 'hanging onto records' until a decision is made.
According to Bausch's case management conference statement, filed also on Friday, Bausch claimed he was instructed by an attorney appointed by the city to represent him in former city manager Ty Lewis' $2.275 million claim to wait to search for documents relating to The Tribune's requests until March 16 or when a settlement between the city and Lewis was reached. The settlement was reached on Jan. 26.
Also in his statement, Bausch claimed to have not leaked a recording of a meeting between him, Lewis and Mayor John Hamon to Velie. The Tribune had initially requested the recording in October.
'Bausch did not leak, send or otherwise deliver the tape to anyone except his attorney,' he wrote in the statement. 'Bausch notes there was another reporter in the pastry shop who claims to also have made a recording that day.'
Velie posted two different versions of the recording to Cal Coast News' YouTube channel — the first version including an introduction by Bausch that says it's his copy and the second with the introduction deleted.
The audio posted by Velie is identical to the audio the Tribune finally received in response to its request — three months after its initial request — except for a few seconds of background noise at the end. The introduction, which was deleted from Cal Coast News public YouTube, was also identical.
Bausch claims it's the city who's to blame for the delay in responding to The Tribune's requests. He claimed his attorney, appointed by the city's insurance company to represent him during Lewis' claim, 'butted heads' with the city's public records process, so the city replaced him. The second attorney was also replaced because of a 'conflict check,' he said.
'The third attorney kept a low profile and survived,' Bausch wrote. 'They, too, saw the benefit of preserving all records until a final settle (sic) agreement with the employee was reached.'
He said once the settlement was reached, the city's insurance attorneys had a 'new concern' that releasing 'some or all of the embargoed emails and/or text messages could trigger a lawsuit based on some real or imagined defamation.'
Bausch then requested the the city and its legal counsel review the documents submitted by Bausch and withhold or redact any documents that may prove to be 'Insensitive, inflammatory, derogatory, defamatory or in any way violate the terms of the Settle (sic) Agreement.'
However, a settlement agreement does not warrant withholding or redacting public records, Olson said.
'That's something which is inconsistent with both the language and certainly the spirit of the Public Records Act,' Olson said. 'The whole purpose of the Public Records Act is to allow the public and the press to be able to see what the government and its officials are doing and to be able to hold public officials accountable.'
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