|Richmond Retains Secrecy Lead
July 25, 2004
Today’s Contra Costa Times includes a comprehensive investigative piece on Contra Costa and Alameda County public agencies’ compliance with the California Public Records Act. Not surprisingly, Richmond tied with San Ramon for “Best in Class,” in Contra Costa County by not responding at all to a request for copies of Statements of Economic Interest (Form 700) of elected and appointed officials and for police incident logs.
According to the Times, “The newspaper undertook this project after its reporters noticed a trend of local agencies denying access to routine public records in cities such as Oakland, Hercules, San Ramon and Richmond.”
“Ask for routine public records at most Bay Area public agencies and you'll likely be met with suspicion, defensiveness, intimidation, needless delays, incompetence and ignorance,” says the article, and that certainly describes Richmond.
The entire article, including charts showing compliance by various agencies can be found by clicking on the following:
I have been a vocal critic of Richmond’s official obsession with secrecy about public documents and municipal affairs for years, but it was satisfying to have my suspicions validated that Richmond has the worst record for Public Records Act compliance of any city in Contra Costa County. In the E-FORUM, I have written about Richmond’s secrecy policy many times. See Secrecy Continues to Prevail in Richmond (February 1, 2004), Council Flouts Brown Act, Threatens to Censure Council Member Over Secrecy Breach (April 2, 2004), City Officials Obsessed with Secrecy (November 8, 2002) and City Officials Threaten to Embarrass Council Member Over Unpaid Judgment (April 2, 2004).
This is not only embarrassing for Richmond; it is also expensive. In 2000, the city of Richmond paid $231,885 in court-ordered attorneys' fees to the San Francisco Bay Guardian, an amount experts say is the most ever paid by a California public agency for unlawfully withholding records. The payment ended a seven-year court battle in which Richmond officials fought bitterly, at considerable taxpayer expense, to keep the city's police discipline records secret. For details, see http://www.sfbg.com/News/34/45/45oghric.html.
Richmond officials might benefit from the Contra Costa Times offer to host an August 6 workshop for public officials on public records access. I hope our top management can find time to attend. Maybe the Times could also host a briefing on the Brown Act as a twofer; Richmond seems to have a lot of problems with that law too.
The lead-in article from today’s West County Times follows this E-FORUM.
ACCESS DENIED: A TIMES SPECIAL REPORT
Ask for routine public records at most Bay Area public agencies and you'll likely be met with suspicion, defensiveness, intimidation, needless delays, incompetence and ignorance.
During a four-month investigation of public records access at 86 governments, school boards and special districts, and 36 police departments, Times reporters encountered numerous impediments to seeing routine public records such as employment contracts and elected officials' economic disclosure forms.
At issue, public records advocates say, is the survival of transparent, representative government. Without access to records, especially at the local level, they say, there can be no defense against abuses of power such as overspending, favoritism and graft.
During a six-week period beginning in April, the Times sent 20 reporters and editors to agencies across the region. They identified themselves only by name in order to gauge the response to an average person asking for records. State laws governing records access do not distinguish between journalists and the general public.
When asked for immediate access to the records as state law requires, government workers sometimes demanded the reporters' identities and their reasons for wanting to see public documents.
One official who denied access said she did so partly because she is "told to always watch over my shoulder for terrorists."
Another government employee researched the identity of a requester on the Internet, bragging about it in an e-mail. At another agency a clerk e-mailed a reporter at work, apparently after learning of his employment through an Internet search.
Each denial of public access is a dagger driven deep into the heart of democracy, public information advocates say.
"It's appalling and baffling," said Terry Francke, a top public records expert and general counsel of Californians Aware, an open government group.
"It's shocking," said Bob Stern, president of the Center for Government Studies in Los Angeles. "A lot of these agencies appear to be clueless."
Riverside Mayor Ron Loveridge, head of the League of California Cities Policy Board, said he was surprised many agencies took more than a day or two to release documents. "If this happened in Riverside, we would rap the knuckles of the people responsible," Loveridge said. "How else can we be held accountable if this is not public information?"
"It's a huge problem," said Tom Newton, general counsel of the California Newspaper Publishers Association. "Public access to information is the only way average citizens can maintain any level of control over their institutions."
Political bodies need public input - input that can't occur if information is denied, said former Mt. Diablo school board member Dennis McCormac. "It's just flat wrong not to give out public records like this promptly. There is no excuse."
But excuses abounded.
Reporters were able to see the statements of economic interest at only 37 of 86 agencies on the day they asked to see them. The state-mandated documents list officials' businesses and investments to alert the public to conflicts of interest.
California's 1974 Fair Political Practices Act requires that the forms be available for public review during business hours at all government agencies, no questions asked.
When reporters asked to see the employment contract of an agency's top executive official, such as a city manager or a school superintendent, 20 of 79 agencies granted immediate access to the document. (A few agencies, such as school districts under state control, did not have a contract applicable to the investigation).
Some provided outdated contracts that failed to include significant increases in salaries approved as amendments to the original document.
Public records advocates including Francke praised the Times survey for its simplicity because reporters asked for only unquestionably public records. The results, they said, were overwhelmingly poor and would have been worse if reporters had asked for complicated records such as cell phone bills or expense reports, which state law classifies as public documents.
Inaccessible government records cut off the public from decision making and its traditional watchdog role. Residents can use data to force changes in policies such as spending and travel, which occurred in Livermore last year after parents reviewed school board records.
The Mt. Diablo Unified School District in Concord flatly rejected a request to look at its board member economic interest statements, a response that occurred 57 percent of the time in Contra Costa, Alameda and southern Solano counties.
Sue Berg, assistant to the Mt. Diablo school district superintendent, later defended her decision. She said she understood that in theory she should not ask the public to justify their information requests. But "in this day and age, when I am told to watch for terrorists over my shoulder," she wasn't going to help someone "who walked in off the street and didn't identify themselves."
She said she would ask anyone who sought records "why they needed them."
The Fair Political Practices Commission regulates the economic interest forms. "The law is clear. It is very simple. Disclosure is required," said its spokeswoman, Sigrid Bathen.
Only two school districts in Contra Costa County, San Ramon Valley Unified and Canyon, allowed access to the forms the day a reporter asked to see them.
The city of Martinez took 27 days to provide its officials' forms. The Acalanes Union High School District took 15, and Pittsburg Unified schools 22.
In Alameda County, the Oakland school board could provide only year-old economic statements. The Chabot-Las Positas Community College District took 22 days to produce the statements for its board and its president's contract.
In Solano County, a clerk at the Benicia school board refused to provide copies of the economic statements. When the reporter left an address so the forms could be mailed to her, the clerk followed the reporter to her car and said, "You're not from Benicia?"
The city of San Ramon was among 16 agencies that never gave up the records. City Clerk Judy Macfarlane said the request, which a reporter put in writing after immediate access was denied on April 4, must have been lost. "I don't know what happened," she said.
San Ramon residents said the response is typical of Macfarlane. She often takes weeks to answer requests, when she answers at all, they said.
"I frequently did not get what I wanted from the city," said Roz Rogoff, who writes a newsletter about city politics. "I would go back two or three times asking for material sometimes. Two or three months would pass and I would hear, "'Oh, we forgot. We'll get back to you.'"
Macfarlane claimed she did not have the time or staff to comply with state law. "You pick and choose and do your best," she said. She added that she sends the requests to the appropriate city department but does not follow up.
She estimated that she processes at least 20 public record requests a month or about 240 a year and she did not have the resources to process them all. But city records show her office received 84 requests in the 12-month period that ended June 30, including some made orally for meeting minutes and letters.
Other requests were for economic interest statements, building plans, contracts, audits and city laws, some of which, according to city records, were not given to the requester for weeks.
The California Public Records Act allows agencies up to 10 days to produce records, but only for complicated queries. It requires agencies to "make records promptly available."
Most agencies the Times surveyed automatically imposed a 10-day waiting period for both the economic interest statements and employee contracts. The Public Records Act states that the 10-day period should not be used "to delay or obstruct the inspection or copying of public records."
Francke and others said there can be no excuse for taking 10 days to produce a contract that a public body such as a city council or school board has approved.
The median wait for contracts the Times requested was three days, with a high of 27 days for the city of Martinez. Contra Costa County took 19 days to provide Administrator John Sweeten's contract. Alameda County never produced Administrator Susan Muranishi's contract. Twelve of 79 agencies, including San Ramon, the West Contra Costa school district and Sunol Glen School District, never produced their top official's contract.
Not all agencies denied access.
Piedmont, Walnut Creek, Danville, Brentwood and Dublin city hall staff members provided documents immediately and with no questions.
"We try to fill those requests on the same day," said Piedmont City Clerk Ann Swift.
"The city attorney does educational presentations and sends out information so that people understand the rules" of public records, said Walnut Creek City Manager Mike Parness.
But most local agencies do not offer training in public records law compliance.
White, the spokeswoman for the Fair Political Practices Commission, said that because of deep budget cuts the commission no longer sends trainers around the state unless someone else pays for it.
Reporters routinely encountered officials ignorant of both the Fair Political Practices and Public Records acts.
"When I was put in this position, I didn't receive any training. It was more of an oversight, not that we were hiding anything," said Jill Ramsay, an administrative assistant for the Acalanes school district who denied a reporter immediate access to records.
At the Zone 7 Water Agency in Alameda County, executive secretary Barbara Morse met a reporter with a terse, "Let's get it out in the open. Who are you?"
"Sometimes you have people coming in and you don't really know what their motivation is," Morse said later. "I don't think that's an unreasonable request given security."
Morse, who has been with the water agency for more than 20 years, said she attended a class on public records last year. "It's something you pick up over the years," she said.
Francke of Californians Aware said he could accept probing questions from officials if the requests had been vague. But in asking for employment contracts and economic interest statements, the Times requests "were laser-point," he said. "There couldn't be any vagueness in that."
It is obvious that officials simply reacted with their "default psychological disposition" to withhold public information, he said. "There is no downside (for the official) for saying no. No one has ever had an hour (of pay) docked because they said no."
Part of the problem is the perception among officials that the records belong to them and not the public, said Peter Scheer, executive director of the California First Amendment Coalition.
"Most people want to think they can exercise discretion as a public employee," Scheer said, and that leads them to withholding access.
"An aspect of power is having control over information."