Lyme Science Emails (UCSF)

Justin McLachlan filed this request with the University of California, San Francisco of California.
Tracking #

020-148

Due July 10, 2021
Est. Completion None
Status
Awaiting Response

Communications

From: Justin McLachlan


To Whom It May Concern:

Pursuant to the California Public Records Act, I hereby request the following records:

All emails from or to the email address vwormser@fresno.ucsf.edu (or any other address used by Dr. Worsmer) regarding or mentioning lyme disease, specifically but not limited to any emails referencing in any way the website Lymescience.org or the name Justin McLachlan.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 calendar days, as the statute requires.

Sincerely,

Justin Sparks

From: University of California, San Francisco

Dear Justin Sparks:

This letter is to acknowledge your written request for documents related to "...lyme disease..." made pursuant to the California Public Records Act (CPRA), Government Code §6250 et seq., and dated December 9, 2020.

Your request for records is overly broad and cannot be processed as submitted.

The University would like to assist you in making a focused and specific request that can be processed. One way to accomplish that would be to submit a request that seeks correspondence between specific individuals on a specific date.

Please be aware that several potentially identified individuals are most likely heavily involved in the University's response to COVID-19; and, therefore, the University will be delayed in responding to your narrowed request.

If the University does not receive a revised scope by January 8, 2021, then your request will be considered closed.

Sincerely,

Brenda Gee
Communications, Policy, and Records
Office of the Executive Vice Chancellor and Provost

From: Justin McLachlan

You are requested and required to search all available email records for any response to my request. Cal. Gov. Code § 6253 only requires that my request “... reasonably describes an identifiable record or records.” Your agency is obligated to comply so long as the record can be located with reasonable effort. Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 847 (1998).

I cannot know which dates emails were sent if you refuse to search for them. To make it easier, you may, in the alternative, send every record in the email account referenced above since the account was created, and I will search it myself. I am familiar with your email systems and the entire account can be exported in a file that I can easily access. However, it seems it would be preferable, on your end, to simply conduct the search as requested and required and provide only the records I have specifically requested.

Any continued refusal to search for records based on the above will result in immediate litigation to compel compliance. Please note that the CPRA requires a court to "award costs and reasonable attorney fees" to a plaintiff who prevails in proceedings to compel disclosure of public records pursuant to CPRA. Cal. Gov't Code § 6259(d). The award of costs and fees is mandatory. Bernardi v. Cty. of Monterey, 167 Cal. App. 4th 1379, 1393, 84 Cal. Rptr. 3d 754 (2008).

From: Justin McLachlan

To Whom It May Concern:

It has been several weeks with no response or acknowledgment to our follow-ups. This request is past due and you are risking imminent litigation to compel compliance. Please respond and update the status of this request within the next three business days.

Sincerely

From: University of California, San Francisco

Dear Justin,
Your recent message was forwarded to UC Legal for response. I hope that I can be helpful in explaining the University’s reply to CPRA request 020-148. Your request sought “All emails from or to the email address vwormser@fresno.ucsf.edu … regarding or mentioning lyme disease… “. As you may know, Dr. Wormser is a published author who has research papers on NIH/PubMed regarding lyme disease. Your request seeks every email that she has ever sent or received regarding or mentioning lyme disease. Such a request cannot be processed pursuant to CPRA. In California First Amendment Coalition v. Superior Ct. (1998) 67 Cal. App. 4th 159, 166, the court found that even “a clearly framed request” may be unduly burdensome if it “compels the production of a huge volume of material.” The public interest in responding to focused and specific requests clearly outweighs the interest in responding to overbroad requests (Government Code 6253.1 and 6255(a)).

Further, the set of potentially responsive records would include information that is exempt from disclosure. For example, research includes personal health information and scholarly discussions that are exempt from disclosure. The burden of segregating exempt from nonexempt materials is another consideration courts take into account in determining whether the public interest favors disclosure (American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440). The burden on UCSF to review every email a lyme disease author has ever sent or received regarding lyme disease is exactly the type of burden the courts refuse to place on a public entity.

UCSF attempted to assist you in revising the request so it could be processed. However, in your most recent response, you instead asked that UCSF send every record in the email account since the account was created. CPRA does not require public entities to do such a thing. If you would like to revise your request so it does not attempt to compel the production of every email Dr. Wormser has ever sent, UCSF will be happy to process a request that reasonably describes an identifiable record(s).

Thank you, kind regards,
Tom Dellner
Analyst
UC Legal – San Francisco
415-476-2812
tom.dellner@ucsf.edu<mailto:tom.dellner@ucsf.edu>
Pronouns: he, him, his

From: Justin McLachlan

You misunderstand my request. If you will not search the requested email box for responsive records, I am amending my request to include the entirety of Dr. Worsmer's email box. Exemptions to the PRA are discretionary, you are under no obligation to review the records at all, they are inherently public.

I also do not understand why Dr. Worsmer would be using an insecure medium like email to transmit protected health information. There is no exemption to the PRA for "scholarly information," whatever you mean by that. I also dispute your assertion that Dr. Worsmer is a lyme disease researcher whose email would be filled to the brim with information about Lyme disease to the point that you can't even search through it. Her own UCSF profile lists three publications, and a grand total of one relates to Lyme disease. Searches in Pubmed and Google scholar also do not return any evidence that Dr. Worsmer has had anything close to a significant research career, nor that she could generate the amount of email on Lyme disease as to be so burdensome you can't process let alone even search through the emails.

What's more, none of your objections would apply to the search term "lymescience.org" unless Dr. Worsmer is communicating an excessive with and or regarding this site? Is that your representation? There are too many emails with that search term as well?

The statutory timeline for the production of these records has passed. If you continue to refuse to respond, I will seek a court order compelling compliance on Tuesday, January 20, 2021.

From: University of California, San Francisco

Hello and good morning, Mr. Sparks. I hope this finds you well.

I regret if there was any confusion regarding my last reply. Please allow me to clarify:

Contrary to your assertion, the California Public Records Act does not mandate disclosure of all documents within a public entity’s possession. Rather, by specific exemption and reference to other statutes, CPRA recognizes that there are boundaries where the public’s right to access must be balanced against considerations such as the right of privacy. This balance is not discretionary, it is a right of constitutional dimension under California Constitution, Article 1. Additionally, CPRA exempts from disclosure records that are privileged or confidential or otherwise exempt under either express provisions of CPRA or pursuant to applicable federal or state law. See California Government Code Sections 6254(b); 6254(c); 6254(f); 6254(k); and 6255.

* Your initial request sought “All emails from or to the email address vwormser@fresno.ucsf.edu … regarding or mentioning lyme disease…”. The request was overly broad as it sought any mention of lyme disease by a user that has published research on that disease. Further, the request purported to require UCSF to read every email ever sent to/from the user and determine if any were “regarding lyme disease”. Neither the CPRA statute nor the corresponding caselaw require a public entity to undertake such a burden. See California Government Code Sections 6253.1, 6255(a), and California First Amendment Coalition v. Superior Ct. 67 Cal. App. 4th 159, 166 (1998). UCSF provided a timely and proper response and attempted to assist you in making a focused and specific request that could be processed.

* Rather than revise your request to make it focused and compliant with CPRA, you instead expanded it to request “… send every record in the email account referenced above since the account was created… “. As described above, such a request fails to recognize the boundaries of the public’s right to access and the exemptions codified in California Government Code Sections 6254(b); 6254(c); 6254(f); 6254(k); and 6255. The caselaw evidencing that this form of request is invalid and nonsensical are too voluminous to list.

UCSF would still like to assist you in making a focused request that can be processed. For example, UCSF can conduct a search pursuant to CPRA for emails to/from a specific domain, such as “Lymescience.org” – or emails to/from a specific individual such as “Justin McLahlan”. Please let us know if you would like to revise your request in that manner.

Otherwise, for the reasons stated above, your request for all emails regarding or mentioning lyme disease and the revised request for every record in the email account are closed.

Kind regards,
Tom Dellner
Analyst
UCSF Legal Affairs
415-476-2812
tom.dellner@ucsf.edu<mailto:tom.dellner@ucsf.edu>
Pronouns: he, him, his

From: Justin McLachlan

Thank you for your response, I have repeatedly declined to narrow my request, and decline to do so now. I'm not sure you'd need my permission to search for the specific terms and produce records that are relevant, and it should've been done by now. The statutory deadline for these records has past and your continued refusal to produce any records, even now that you admit, after weeks of delays and stalling and denying that you "...can conduct a search pursuant to CPRA for emails to/from a specific domain, such as “Lymescience.org” – or emails to/from a specific individual such as “Justin McLahlan (sic)”.

Why has that not been done? Why did UCSF repeatedly refuse to take this step? This request is clearly not being handled in good faith. You are required to produce any records responsive to my request. Believing, even erroneously that some records are exempt or that certain searches don't have to be undertaken, does not absolve you of the requirement to disclose other records.

And again, for the record — Dr. Worsmer is not a Lyme disease researcher. She is a PGY-3 resident who was a second author on a single Lyme disease paper published years before she began her residency at UCSF. Please expect an additional request for all IRB records related to Dr. Worsmer's supposed Lyme disease research. It is highly unlikely, and would be suspect under ACGME guidelines, that Dr. Wormser is spending any consequential amount of time conducting so much Lyme disease research — to the detriment of her clinical training — particularly when she's not published a single paper on the topic for the last five years or nearly any papers at all since her residency began. Dr. Wormser is not even training in infectious disease, it's unclear why the UCSF program would permit so much research activity that even searching her email for the term would be burdensome. This excuse is wearing quite thin, and I'm quite confident I can prove to a court that it is specious, at best.

From: University of California, San Francisco

Hello and good morning, Mr. Sparks.

UCSF processes hundreds of CPRA requests each year without issue. Our standard process when receiving a request that is overly broad is to attempt to work with the requester to revise the request. UCSF always does so in good faith. I see in your response that you have declined to revise the over broadness of your request but are interested in specific emails that were sent to/from “Lymescience.org”. Accordingly, UCSF is conducting a search for any records responsive to “emails sent to/from Vanessa Wormser and Lymescience.org”

UCSF estimates the search will be complete on or before February 15, 2021.

Regarding your initial request, CPRA does not require a public entity to undertake the burden of reading every email a user has ever sent or received and then attempting to determine what they are regarding. I thought it would be helpful context to mention that the individual in question was on a lyme disease publication to better understand the overly broad nature of the request. It seems that it wasn’t.

Thanks, kind regards, td
Tom Dellner
Analyst
UCSF Legal Affairs
415-476-2812
tom.dellner@ucsf.edu<mailto:tom.dellner@ucsf.edu>
Pronouns: he, him, his

From: University of California, San Francisco

Hello and good afternoon, Mr. Sparks.

UCSF completed a search and located one responsive record. There were no emails sent to or from “Lymescience.org”. However, there was one message apparently sent by you to Vanessa Wormser asking about the site. It is attached hereto as the one responsive record.

Your request is now closed.

Kind regards,
Tom Dellner
Analyst
UCSF Legal Affairs
415-476-2812
tom.dellner@ucsf.edu<mailto:tom.dellner@ucsf.edu>
Pronouns: he, him, his

From: Justin McLachlan

Thank you, for finally, doing what I asked. Imagine if you'd done that in the first place instead of spending two months wasting time. I am, still, deeply concerned about the -- at best -- misleading representations made in the course of handling this request and do not consider the matter closed.

Sincerely,
Justin McLachlan

From: Justin McLachlan

Mr. Dellner,

In a separate PRA request, the University has now mostly confirmed that your representations regarding Dr. Wormser's research activities at UCSF were, at best, inaccurate. The University says it has no responsive records to a request for Dr. Worsmer's research materials, such as IRB approvals, etc.

Can you please provide any documentation that would support your earlier statements regarding Dr. Wormser's status as a Lyme disease researcher to me regarding this request? You may consider this a new and separate request under the PRA and your response is required within 10 business days.

Government Code section 19572 specifies that employee dishonesty constitutes a cause for discipline, and an employee who engages in “other failure of good behavior that causes discredit to the employee’s agency or employment” is also subject to discipline.

Sincerely,
Justin McLachlan

From: University of California, San Francisco

Hello and good afternoon, Mr. McLachlan. I hope this finds you well.

I regret that I don’t really know what you are talking about. I did not make any statements or representations about research activities at UCSF. Your PRA request was forwarded to me because you were questioning why you were informed that it was overly broad – so I attempted to provide you with the context of why the University considers requests overly broad. Specifically, PRA 020-148 was submitted as a request for all email mentioning the term “Lyme disease”. That term is included in the individual’s UCSF Profile (https://profiles.ucsf.edu/vanessa.wormser) so the request as submitted would purport to have UCSF locate every occurrence of an individual using their CV, referencing their publications, etc – and that is overly broad. If I recall correctly, you did not think my reply was helpful. Which is fine, I can appreciate that. However, to be clear, I did not make any statements about Dr. Wormser’s research activity – I have no idea what she might be working on. My role was to respond to your inquiry about why the University determined PRA 020-148 was overly broad. Which is what I did. To the extent you sent today’s message as a new PRA, there are no responsive records as the premise of the request is incorrect.

Thanks, kind regards,

Tom Dellner
he/him/his
Analyst
UC Legal – San Francisco
UCSF Office of Legal Affairs
745 Parnassus Ave, San Francisco, CA 94143-0986
(415) 476-2812

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From: Justin McLachlan

Mr. Dellner--

In your response, you state: "Specifically, PRA 020-148 was submitted as a request for all email mentioning the term “Lyme disease”.

This is patently false. The original text of the request is available to you, and I'd appreciate it if you'd take the time to ensure accuracy in your responses. The original request asked for "[a]ll emails from or to the email address vwormser@fresno.ucsf.edu (or any other address used by Dr. Worsmer) regarding or mentioning Lyme disease, specifically but not limited to any emails referencing in any way the website Lymescience.org or the name Justin McLachlan." The university was absolutely, 100 percent never asked to "for all email mentioning the term 'Lyme disease.'" I would remind you that Government Code section 19572 specifies that employee dishonesty constitutes a cause for discipline, and an employee who engages in “other failure of good behavior that causes discredit to the employee’s agency or employment” is also subject to discipline.

In response to my original request, you said: "As you may know, Dr. Wormser is a published author who has research papers on NIH/PubMed regarding lyme disease (sic). Your request seeks every email that she has ever sent or received regarding or mentioning lyme disease (sic)." You then claimed that to even make a determination under the PRA was not possible because the request would be "unduly burdensome" and compelled “... the production of a huge volume of material.” Please note that you said "papers" not "paper."

As it turns out, Dr. Worsmer has engaged in no research at UCSF. As it turns out, one email was responsive to my request. One. I have endeavored to turn up other records that may have supported your contentions, and though the university is again unlawfully delaying the production of records in response to my requests, it turns out there are no other records. Nothing to support any of the statements you made and the excuses you used to attempt to deny the public access to UCSF's records.

You held this request and refused to comply for nearly 60 days, and I'm only trying to figure out why. I want to be 100 percent clear. Your explanation seems to me to be 1) you never bothered to understand the original request so you could respond properly and 2) you invented a pretext to support someone else's conclusion that the request was too broad, and then finally had to conduct the search I requested when you realized you had no evidence to support even the pretext?

Who made the original determination that the request was overly broad if it wasn't you? Was it Ms. Gee? She is coming into focus as a bottleneck for many of the problems it seems the public encounters with UCSF when making public records act requests.

Sincerely,
Justin McLachlan

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