The city started its streets maintenance schedule and streets condition study in February 2009, by hiring Nichols Engineering to study our streets. The report to come out is to be used to help the city optimize how much and where to do preventative street maintenance. The contract called for the report to be complete by August 2009.

Mayor Dalager has been saying publicly that the city is adequately funding essential services and infrastructure maintenance. We hope the report will confirm his assessment.

Staff have stated that the consultants finished their report and sent it to the city a half year ago, but the city will not release the document to the public.

Calaware has requested the report from the City of Encinitas. Here are some excerpts from the the requests and responses:

I received your request to view the Pavement Management Report. Right now it is in only draft form and is not available to the public. It will become available to the public when the report is finalized. The Pavement Management Report should be finalized sometime in late July. Feel free to call me periodically after July 20 to see if the report has been finalized. Once the report is finalized I can make a copy of it for you and have it ready for your pick up. Just let me know. We are going to Council on September 8 to present the final Pavement Management Report to Council. Thanks.

Kipp Hefner
Associate Civil Engineer
City of Encinitas

Calaware's first response:

Mr. Hefner,

The California Public Records Act contains no exemption from disclosure for documents on the basis that they are not "finalized." The term does not appear anywhere in the CPRA, or any relevant case law or opinions of the Attorney General. The concept it represents was considered and rejected by the California Supreme Court nearly 90 years ago.

The CPRA does contain an exemption from disclosure for preliminary drafts, under certain limited circumstances, in Government Code Section 6254, subdivision (a). You may be referring to this provision, but it is inapplicable to the report I am requesting, since among other things the exemption refers to documents so primitive that are not "retained by the public agency in the ordinary course of business." This document, referred to in the budget as my request noted, has been retained in city files for long months and will not be disposed of.

In the only case law interpreting subdivision (c)— Citizens for a Better Environment v. Department of Food & Agriculture, 171 Cal.App.3d 704 (3d Dist. 1985)—the California Court of Appeal several times cited as leading authority a 1921 decision of the California Supreme Court, long predating the CPRA, Coldwell v. Board of Public Works, 187 Cal. 510. That case involved a citizen's request to review engineering plans and other documents in the office of the San Francisco public works department concerning the ongoing construction of Hetch Hetchy dam in the Sierra. The high court, in upholding the trial court's order that the citizen's request be complied with, expressly repudiated the notion that plans in progress—not yet completed by the city engineer or presented to the public works board—were therefore not subject to public disclosure.

That the Hetch Hetchy project is a public matter, in which the public has an interest, cannot be doubted. It follows that the public has an interest in the plans and designs which are adopted for the completion of the project. Not only is the work being done in the course of completing a public project, but it is being done by public officers and employees at public expense. That these plans are tentative and are liable to error or alteration cannot change their character, for, while they may not represent the final result of the work of the city engineer’s office, they are important details of that work. As such they are matters which affect the public, and in which the public has an interest, if that interest is only to see that the city engineer is taking steps toward the completion of the Hetch Hetchy project. It must be held that the implied finding of the trial court that they are of such character was justified.

Id. at 510 (emphasis added).

Please provide a copy of the requested document without further delay.

Terry Francke
General Counsel

Then City Attorney Glen Sabine responded and claimed the city could withhold the documents based on a deliberative privilege exception. Read that here.

Read Calaware's response to City Attorney Glen Sabine here. Here are excerpts:

First, the court in Times Mirror Co. applied the common law deliberative process privilege as a basis for finding an overriding public interest in nondisclosure of materials that were not drafts. Had they been drafts, the court could not have ignored the limitations of the draft exemption in Government Code Section 6254, subd. ...

Supreme Court case antedating the California Public Records Act that holds that the public has a right to see the documentation of a public works project even though not (or not yet) “approved” or in final form...

The second problem with the applicability of Times Mirror Co. is that it antedates Proposition 59 of 2004, which
• elevated public access to the writings of public officials and agencies to a constitutional right as fundamental as, for example, speech or assembly;
• grandfathered in limits to such access found in then existing statutes and constitutional provisions—but not then existing judicial authority;
• required any such limitations to be given a narrow construction; and
• was adopted by more than 83 percent of the vote based on a ballot argument that asserted the need “to understand the deliberative process.” The City Attorney of San Diego, noting this event, has concluded that the privilege after Proposition 59 “is of dubious authority.” Opinion No. 2005-01.

There are strong appearances that the the city keeps its documents secret and labels them "draft" until right before the document gets put on an agenda. This is a trampling of the California Public Records Act, in the context of Prop 59. It is true that the city can withhold a draft public document, but only under narrow circumstances where the document meets certain conditions. The city applies the exemption to the entirety of ALL internal documents it decides to label draft.

Several other important documents were kept from (most of) the public for months and years. City insiders, who were not employees, have had access to some of these documents while city watchdogs were simultaneously refused access.

Please recall that the city and its consultants have admitted to having not released the traffic study (which was a shocker) for political reasons (an election was approaching). When it was finally released the public was only given two full staff days before the day the council was to accept the report and potentially condone its dramatic changes to city policy.

The city also refused to release the employee health care liability study, on the grounds that it was a draft and might need edits. There is no evidence that the report changed from the time the consultants first turned it in to the city and months later when it was quickly pushed through the city council. It is doubtful that any of the city staff have actuarial skills that could have resulted in material changes to the report. The report appears to have been complete many months before it was allowed to be seen by the public.

What if the document wasn't done and needed edits? Why not let the public help vet the document up front? If staff is directing changes to consultants' work, shouldn't they be able to defend those requested changes?

How to deal with such issues is exactly the sort of thing that the City Council (minus Barth) recently decided to avoid discussing in public. See here.