Links to Pavement Management Report Issue:
City warned it is violating the law and principles of open government
City will not address legal issues
Report is done

Re-posted Entry Below: Had the Council decided to have open discussions about the city's public record practices the "draft" exclusion being used to withhold the pavement management report would have been brought up, discussed and resolved in a collaborative manner.

On June 10th (2009) the council considered drafting a sunshine ordinance. Kevin Cummins had cornered a less than willing council into deciding if they would take up the matter.

Here is what CFAC writes about sunshine ordinances in California:

Although state law--mainly in the form of the Brown Act and the Public Records Act--governs access rights at the local level, cities and counties are free to enact ordinances that provide GREATER RIGHTS OF ACCESS than state law. These local laws providing extra rights are often referred to as "Sunshine" laws.

Teresa Barth provided the lone vote for moving forward with a sunshine ordinance.

Houlihan voted against an ordinance. It was unclear why. Some observers didn't even realize she had voted against it.

Jerome Stocks apparently voted against the ordinance because the city was already being open and transparent. He used the staff's report as evidence that staff has been doing a great job and that the city is very open. Staff and Stocks are correct about the city being responsible for following the California Public Records Act and the Brown Act.

Stocks did not discuss the Open Government practices and provisions that are beyond these two state laws. In some cases, these provisions are included in the sunshine ordinances of other cities. The practice at Encinitas City Hall does not exceed many of the key extensions found in the sunshine ordinances of other cities.

City staff disclosed that they had left these provisions out of the staff report, but none of the council members inquired into the missing information.

Stocks also failed to address years of objections from the public and that the city often does only the minimum, uses gray areas in the law to restrict public access, and frequently violates the CPRA and Brown Act. Danny Dalager even admitted to violating the Brown Act during the discussion.

Danny has implied several times, on record, that open government laws are a burden (without qualifying it as a necessary/useful burden). This week he told a story about how a resident had conduced a records request for an email that contained a citizen's phone number.

Danny says the requester used the phone number to harass the citizen who sent the email to the city. His conclusion wasn't clear to me, but I think that is his justification for deleting his public record emails. It wasn't clear if he was also admitting to violating the California Public Records Act. He was certainly admitting to violating the law's intent.

Unfortunately, Danny did not discuss why his concern couldn't have been addressed during the drafting of a sunshine ordinance. Indeed, without taking action the story could repeat.

No one brought up that there is no satisfactory means for the public to have their concerns regarding violations of open government laws resolved, short of suing the city. This is the first thing I would ask to have included in a sunshine ordinance.

Recommendation
The citizenry will either have to: elect a council majority interested in ensuring the fundamental components of democracy are secured, or adopt a sunshine ordinance via an initiative.

See Also:
50% Chance of Sunshine

City made a practice of deleting emails. Deleted emails were not backed up.

Tony Kranz did his own investigating on the issue of the streets management report, after reading this ETA blog post. Kranz conveyed his findings to the city council this week and asked that the streets report be released.

Kranz reviewed the contract and found that it was approved February 2009 and the project was to be complete August 2009. The contractors expected to be working 5 months. The report will have taken 160% longer than expected to be completed. The delays mean that the council was unable to use the report in establishing this year's road maintenance budget, a major reason for spending $100k for the plan.

The report appears to have been materially complete long ago and should have been used to aid budget discussions. Kranz called the consultants and he reports that they consider their report complete. He also described evidence that the consultant has been paid for completing the report.

The first 3 minutes of the video below contains Kranz's statement.

In a previous post, Calaware explains why the City cannot withhold the Pavement Management Report which was delivered to the City months ago, and why the City Attorney's justification is inadequate.

A low level member of the City Clerk's office informed Calaware's General Council (Francke) that the City will not be addressing his letter. Calaware's letter makes the City Attorney's June 21 letter look like a smoke screen.

Re: California Public Records Act request for draft Encinitas Pavement Management Report

Dear Mr. Francke:

Thank you for your email regarding your second request for the above referenced document. As stated before per the City Attorney’s Office, the City will not be releasing the draft pavement management report pursuant to your request for reasons stated in our letter addressed to you dated June 21, 2010. The City’s position in this matter remains the same.

Sincerely,


Claudia Bingham
Deputy City Clerk
City Clerks Office
City of Encinitas

Side note: The City Clerk is unwilling to say who at the city has the responsibility to ensure that records requests are handled promptly and appropriately.

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.

Last summer the council voted 4-1 (Barth) against discussing a possible sunshine ordinance.

From Calaware:

If passed by the voters, the measure would supplement the Brown Act and the California Public Records Act as they apply to the city with the following more demanding requirements:

Making and Responding to Public Records Requests

"City Clerk shall publish in the annual budget document the number of public records requests received during that fiscal year, the number of requests where documents were available, the number of requests where no documents were available in response to the request, the number of requests completed (or records available) within: 24 hours, 5 days, 10 days and over 10 days.

Read more »

The city paid a million more than the appraisal's inflated fair market value. The ETA reported on this issue back in August 2008.