My Last Rant of the Year: Report on Open Government in Davis

That makes it a little difficult to go back and look at how people voted.  I know it has been brought up during the council meetings at least once.

For all of my complaints about the way we do business in this city, with few exceptions I have had no problems with making public records requests.  I read a lot of statewide news about cities and let tell you, it is something that should not be taken for granted.  I have made a few public records requests of up to a hundred cities and probably a dozen requests of a handful of cities, and if Davis does not handle public records requests the best, it is close to the top.

I was just reading this story about a public administrator’s rude and rather embarrassing voicemail in response to “a public records act request sent by a California attorney, who identified himself as such in a letter requesting staff e-mail addresses from her parks and recreation district.”  She clearly did not know the law and instead of talking with her city attorney, she attempted to respond onto someone voicemail.  You can listen to that voicemail and read the article by clicking here.

In any case, I say all of that to say it is completely unacceptable that the city of Davis not have reasonably up to date records of the minutes of the meetings.  They are the only records that we keep of the meetings.  It would be understandable if the city were a month or even two months behind in posting the minutes.  I understand it takes time to compile, the council has to approve them, etc.  But over a year?  Not acceptable at all.

Because of that, I have now made a public records request of the city for the voting records of all council votes in 2009.  There have in the past been complaints about the number of public records requests I have made.  I have always tried to be considerate of staff time.  One of the biggest mistakes that jurisdictions make is to not contact the requester to understand the information that they really want and work with them to do it in the most judicious time available. 

And actually I would rate Davis fairly high on that scale, I have often had conversations with both the clerk and department heads about the amount of work that a request would entail and the type of information it would yield.  Those conversations I can guarantee save numerous hours to staff, save me money in copies, and get me far better information.  To the point where I will often call the person I want to info from in advance so that we are on the same page.  That doesn’t happen everywhere and often jurisdictions make things difficult for themselves because they do not try to find out what information the individual actually wants.

Back to my rant.  Early last year, 2008, I had spoken to the Historic Resources Management Commission and also the Council about the preservation of council records.  The standard practice right now is that the city only stores council meeting recording for six months.  Thus the only record of what transpired are the minutes and maybe a newspaper article (or in the last three and a half years, a blog article).  So at that time, I suggested they store recordings as a matter of record and everyone seemed to agree other than on the logistics.  And now a days, it would seem simple, you could do it on a hard drive.

Unfortunately, and I forget how at this time, but I have come to find out that the city is not doing that.  We requested a recording from 2008 and were told the city did not have it.  I have not found out why that is the case when there seemed clear and unanimous council consensus that this occur.

It would seem from the city’s own perspective it would want to preserve a record of the discussions and information that led to a vote.  It might at some point be necessary to look back on it.  It might prove useful to understand the intent of ordinances or codes.  The list of reasons can go on and on.

This is about open government and the preservation of basic records of the governance of this city.  As much as I attempt to perform a watchdog role, it requires a more open government. 

Every jurisdiction in California is governed by certain open government laws.  First, we have the Brown Act that insures that city business be conducted in public and that councilmembers do not make decisions behind closed door.  But there are ways around the Brown Act, particularly in a city manager model city. 

This year the biggest disappointment was the negotiation of employee contracts behind closed doors, with no provisions for a sunshine period for discussion.  To make matters worse, the Mayor, cut off discussion during the one open session period where the issues could have been discussed.  One of the most important long term decisions of the year was essentially conducted in secrecy and done so legally.

Second, we have the California Public Records Act.  The California Public Records Act gives access to the public to public documents.  The question is what is a public document and it turns out there are a number of loopholes and exemptions that enable jurisdictions to prevent disclosure of important documents to the public.  California has one of the weakest sunshine acts in the nation. 

The biggest disappointment of the year is the fact that the city was able to restrict access to Bob Aaronson’s investigation into the Grand Jury Report on the Fire Department.  The council never even got to see an unredacted report and disappointingly by a 3-2 vote decided to restrict access to themselves.  Councilmember Souza argued that he did not need to see the whole report.  Instead, the council got to see a redacted report, we got an even more redacted report with pages upon pages entirely blacked out.  We had to take the word of the city manager, who was not necessarily an impartial party in this. 

The rationale was that this was sensitive personnel information–and it was.  But in my view, the public’s right to know should have superseded those concerns.  The city used this law to cover up and paper over the severity of the findings from the investigator.

The other big rationale for failure to disclose public records is the catchall–deliberative process exemption, which allows a city to claim that the matter was not a public record but rather part of the deliberative process.  Deliberative process is obviously broad.

Finally, the biggest problem is that the punishment for failing to disclose documents is that they get taken to court and are forced to disclose the documents.  The maximum penalty would be attorney fees.  That’s it.  Given the expense of going to court, that is a huge incentive for jurisdictions to withhold documents they don’t want the public to see.  The Vanguard learned this last year when we went to court and lost attempting to get the city to release an email from Judge David Rosenberg that lobbied council to hire a certain individual as the new police chief.

Now there are jurisdictions that have created their own sunshine ordinance.  The California Public Records Act and Brown Acts should be seen as the floor for open government rather than the ceiling.  I have urged the city of Davis to enact a broader ordinance on open government, but to date this has not occurred.

What issues of open government will present themselves in 2010?  Stay tuned.

—David M. Greenwald reporting