It must be a something; it can’t be a nothing.

We apologize for this very long post.  The process is nine months in the making.  The ongoing saga of a records request we have previously touched on in What is the Town of Payson Hiding and Payson has nuclear launch codes.  Some Cliff notes:

• Records request.
• Delay, stall, and excuses.
• An Ombudsman intervention.
• Haphazardly produce some documents.
• Now referred to Counsel with authorization to file a suit if necessary.
• The new Town Council gets to address cleaning up the prior Council’s mess.

Citizens are so accustomed to platitudes from the Town that they are ineffectual.  They are dull and insipid.  In no way are they thoughtful or engaging.  To paraphrase former Mayor Murphey, they are “cow puckery.” They remain a staple of corporate America often spoken by media consultants, politicians, and attorneys.  New Town Legal, Ms. Christina Werther, excels in the cow puckery.

The Town sincerely desires to work with you …

The Town is committed to transparency …

I recognize your frustration about this process …

Right after the platitude comes a big BUT.  Experience teaches us all that platitudes and cow puckery are routine in life.  We learn the skill early in life.  The formula is very simple.  (Platitude) ^BUT (Statement.) For example:

• I wanted to do well in class and do my homework, BUT the dog ate it.
• We appreciate you flying with us, BUT our aircraft requires unscheduled maintenance.
• Better late than never; I would have been on time, BUT traffic was horrible.

A mnemonic to help remember the formula (P)^B(S) is “Pure B.S.”

A records request was filed with the Town on March 7^th.  The genesis of the request was a review of emails from the Town Staff that were, shall we say, misguided.  The comments were not flattering to various individuals and groups.  We wanted to see the extent of the comments.  The request was particular as allowed under Arizona law.  That law allows “(T)hat if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.” Lake v. City of Phoenix, 222 Ariz. 547, 548 (Ariz. 2009).  The request:

Please produce the records in the native electronic format, including any attachments.  The formats requested include MSG, PST, EDB, OST, EML, and MBOX, including any embedded metadata.  A Dropbox link can be provided if requested to transfer data.  Otherwise, a USB drive can also be provided.

As the nine-month mark approached, Town Legal became directly involved after the Ombudsman Office‘s intervention.

Here, your request was for native files and the Town recognizes that you are not only asking for the content of the emails but you are seeking the metadata.  That was not clear to the Town in your original request* and I apologize for that confusion and the delay this has caused in producing the records in the format you requested.

*Emaphsis added.

Really?  Not clear?  Exactly how much more straightforward does it need to be?  Did you see the formula?  (P)^B(S).  Here you go: (I apologize for that confusion and the delay) ^B (That was not clear to the Town in your original request).  The beauty of the formula is that it can be expressed (P)^B(S) or (S)^B(P). To use it if or when you need to, remember the mnemonic, “Pure B.S.”

When we mentioned the request, we received threats of civil litigation if the request was pursued.  At the end of nine months, and after every effort made by the Town not to comply with the request, we suspect the information will be very compelling.

The idea that the documents cannot be released in their original format is curious because the prior Town Clerk, Ms. Sylvia Smith, released them quickly and efficiently.  We have native-format records from the prior Town Manager, Mr. Garret, and the prior Mayor, Mr. Swartwood.  At no time did the request take nine months.  Town Legal, Mr. Figueroa, noted that one privileged document was released; it was promptly returned, and no copy was maintained.

The current timeline for the request is:

• On March 7^th, the Town stated: “Your records request has been received in the Town Clerks (sic) Office.  We will notify you as soon as the records are ready.”
• On April 30^th, the Town stated: “We are still working on your records request.  Your patience is appreciated as there are hundreds of emails to review.  I will have the files to you as soon as I can.”
• On May 31^st, the Town stated: “Staff is still working on your records request.”
• On June 17^th, the Town stated: “Your records request is currently in legal review for necessary or required redactions.”
• On July 31^st, the Town stated: “The documents for your request are still being reviewed.”
• On August 1^st, a complaint was filed with the Arizona Ombudsman-Citizens’ Aide office.
• On September 9^th, the Town requested that the request be limited so that the delay could be avoided. The suggestion to limit the request appears to imply that, but for the request, the request would have been fulfilled: circular at best.
  • “Please be advised that due to the volume of your request (over 4,000 files to review), the documents you seek may not be available for 90 days or more.  If you were to choose to limit your request, responsive documents might be available sooner.”
• On November 7^th, the Town stated:
  • “The Town Attorney has approved a rolling release of the documents responsive to your records request regarding Hannah Lusk’s emails.  I anticipate sending you the first batch of documents next week.”
• On November 11^th, the Town recanted the “rolling release” to a “limited release.” The Town stated:
  • “The Town Attorney approved a limited release of documents now which I misunderstood to be a rolling release.”
• On November 11^th, two batches of PDF documents were released.
• On December 6th, more .pdf documents were released, and initial records (very limited, less than 5%) that actually complied with the request were released.

Do not let the Town’s concern over the number of files fool you. Email retention services offer a robust spectrum of search and sort features. The actual initial query is a few keystrokes. Those retention service applications are very beneficial daily in response to document requests. The search and sort features typically offer flags or exclusion functions.

File data from random .pdf documents suggests that no .pdf documents were created before August.  Documents were generated after the Ombudsman’s Office intervened.  The Town’s statements before August 1^st are, at best, misleading.

On November 12^th, Ms. Bailey set a timeline for the Town:

(T)he others are still being reviewed but are expected to be complete by the end of the month.

The documents provided to date have been provided in .pdf format.  This method and the redactions discussed below are time and labor-intensive and do not conform to the records request.  Some documents are redacted, while others are not.  There is no rhyme or reason to the redactions.  Ten examples of documents provided by the Town of Payson reflect the following:

1. A letter as a separate attachment from Pierce Coleman that has been redacted regarding the recipient: There is no apparent basis to redact this document.  We cannot locate the corresponding email.  While outside of our realm, we would anticipate that if the email is privileged, likewise, the attachment(s) would be.
2. A letter as a separate attachment to M***** H******* from Pierce Coleman.  There is no redaction.  The lack of redaction indicates that the Town is selectively redacting documents.  Functionally, the two letters on Pierce Coleman’s letterhead are identical.  We cannot locate the corresponding email.
3. A Facebook post as a separate attachment that has been redacted. We are unaware of any basis for redacting social media posts, and we cannot locate the corresponding email.
4. A Facebook post as a separate attachment that has been redacted.  We cannot locate the corresponding email.
5. A Facebook post as a separate attachment that has been redacted.  We cannot locate the corresponding email.
6. This document is perhaps our favorite. The document is a letter from Jeffrey Aal (Transparent Payson Chairman) to Ms. Tracy Bailey, the Town Clerk, dated December 21^st, 2023.  The letter is a separate attachment.   The Town has gone to great lengths to redact personal information except the name.  We know the Chairperson’s address, email, and telephone number.  We cannot locate the corresponding email.
7. A redacted email regarding payment to the Town of Payson.  To our knowledge, the Town’s financial transactions, including the source of funds, are not subject to any privilege.
8. An email reflecting the redaction of owner’s names on property rolls.  The street address is not redacted.  An online search via the Recorder’s or Assessor’s Office will provide the owner’s name.  Other documents do not redact names in their entirety.
9. An email identifying E***** C*****.  There are no redactions.  We are perplexed why some names in emails and documents would be redacted, and others are not.
10. An email requesting information from S****** D*****.  There are no redactions.  We remain perplexed.

The Town of Payson has gone to great lengths, and likely at a significant cost, to circumvent and stall the document request. Ultimately, the Town of Payson Clerk, Ms. Bailey, under the counsel of Pierce Coleman, is responsible for the misguided direction of the response.

The first batch of native-format documents, 215, was received on Friday, December 6th.  The approach, as with .pdf redactions and production, is again haphazard.  The disbursement of the 215 files covers over a year.  The time distribution below makes no sense.

The Town has provided no clarification of the haphazard method of redactions.  There was no clarification on “rolling” versus “limited” as approved by then Town Legal, Mr. Paladini.  “Native format” is not vague or ambiguous in this context.  The original request stated, “(I)n the native electronic format, including any attachments.”  The Town has stated that 200 documents per week will be produced.  The suggested proposal will take us to mid-April 2025.  Thirteen-plus months to produce records?  Pure Payson platitudes and cow puckery.  It must be something.

Assuming a proposed resolution of 200 files per week, the total time required to fulfill the request is estimated at twenty weeks or 140 days.  Had the Town of Payson contacted us within thirty days after the request and committed to that timeline, the request would have been fulfilled in 170 days, or roughly the end of August.  The Town of Payson did not choose that course.  Had the documents been under legal review from June 17th, as stated, the request would have been fulfilled by November 4th.  The production format would have been resolved if the Town produced a singular .pdf document before November 11th.  By choice, none of that occurred.  We have no credence in any assertion that the Town is committed to transparency or “sincerely desires to work with us.”  (P)^B(S).

We advised the Town that we would exercise all avenues of recourse, including those available under A.R.S. § 39-121.02.  That allows filing suit against the Town to compel the document request.  The Town stated its course of action; we stated our course of action.  Those paths have now intersected.

That brings us to today.  It is time to stop Town Legal’s platitudes and cow puckery, a.k.a. (P)^B(S).

The file has been referred to Counsel to compel the records.  We hope full production of the records can be accomplished outside of litigation.  If not, well, OK.