There is a good article this morning in the Woodland Daily Democrat on the problems that the Yolo County Counsel’s Office had with responding to public records requests.
I thought that problem was fixed. I made a public records request in early September for some records. The County Counsel’s Office responded and requested I bring a check to cover the amount.
I got an email acknowledging receipt of the check on September 24. I have emailed several requests for updates, most recently on December 4, and have not receive a response.
This is a repeat of what had happened earlier this year, and it is becoming a disturbing trend.
Back in June, the public response from Dan Cederborg, an Assistant County Counsel, in the June edition of the Woodland Daily Democrat shows that he missed the point.
He was quoted saying the following:
“That request shouldn’t have taken as long as it did,” Cederborg conceded, adding that the request came at the same time many others were requesting information about the budget. “We consider records requests part of the business of the county but sometimes you have to prioritize. He got the response but did not get it as soon as he would have liked.”
The problem is that I got the response because I went to the County Board of Supervisors and his boss had to handle the matter.
Moreover, the law is very specific about the timeline for responses.
Earlier this year, I had made a request for information from the County Counsel’s Office, it took several months and every so often I would send Assistant County Counsel Dan Cederborg an email asking for an update on the status. He stopped responding, did not return my calls, etc. After awhile, I finally asked Supervisor Matt Rexroad to intercede, he made some calls and within a few days I got exactly what I was asking for.
Flash forward to April 1, 2010. I sent a request for information again to Dan Cederborg. I received a partial response on April 15, but not the entire response.
Government code 6253(c) states, “Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.”
It goes on to state, “In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days.”
The law actually gives four reasons that constitute “unusual circumstances,” that includes the need to collect the records from other facilities, need to search and examine a voluminous amount of separate and distinct letters, the need for consultation, and the need to compile data or a construct some of computer report.
Note, there is no exemption in time for being busy, overwhelmed or understaffed. However, with better communication, the average requester might be willing to cooperate. Unfortunately, when the agency not only fails to respond to requests in a timely matter, but also fails to respond to emails and phone calls requesting updates, it is difficult to garner any sympathy.
In the case of the county, I had already had a request that took four months to fill and so following April 15, I waited three weeks, and on May 7, I sent an email to Mr. Cederborg asking him when I could expect the rest of the response. But he did not reply.
I waited several days, and sent another email saying this time that I didn’t understand his lack of response and still got no response.
So on May 20, I sent an email to Supervisor Matt Rexroad. I followed it up with an appearance on May 25 before the Board of Supervisors explaining what happened. Within four hours of that appearance, I received the documents I have been waiting nearly two months to receive.
That is what precipitated the Woodland Daily Democrat article. We find out, I am not alone. According to the article, “The Yolo County Counsel’s Office has become inundated with public records requests in recent months, applicants are frustrated with delayed response times, and for the first time in several years a private lawyer plans to file a motion against the county to recover attorneys fees associated with the process.”
It continues, “Whether a result of insufficient staffing due to budget cuts, or miscommunication and negligence, private citizens are getting the run-around on documents entitled to them under the Public Records Act.”
Furthermore, “Assistant County Counsel Dan Cederborg said the process has been delayed lately due to an influx of inquiries about the budget and the shooting death of Woodland farm worker Luis Gutierrez. There is not one Custodian of Records for the entire county, but the County Counsel’s Office often handles requests because other departments lack the legal background to discern public from private information.”
They tell the story of attorney Mike Jansen who spent months trying to obtain the information needed to file a claim for his client. It took him six months and three court appearances for Mr. Jansen to receive most but not all of his documents.
“The PRA does not contemplate a six-month delay,” Jansen said. “The PRA cannot allow the government to withhold just because they say this is the law. They are not the law.”
According to the Democrat, Jansen will return to court on the matter July 21 in hopes of collecting $3,000 in attorney fees under Government Code 6259 that states, “The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.”
The problem as was explained at the outset is that the county is not entitled to withhold documents for longer than 25 days for any reason. However, the penalties for non-compliance are almost no non-existent. Under the PRA, petitioners are allowed to litigate to force an agency to comply. If the court rules in their favor, a process that often takes a long time, the agency is compelled to release the document. As we see with the case of Mr. Jansen, the only penalty is that the plaintiff can file a motion to award court costs and reasonable attorney’s fees.
But few people are going take the time and expense to do that. The Vanguard did it once, it took a year and a half to resolve, and in the end, we did not get the document. Had we gotten the document, it was already long after the issue had initially arisen.
“Court costs are the only recourse a person has if wrongfully denied public documents, but few are reimbursed for their time and effort. It may be a routine practice for lawyers, but as a journalist, filing motions against your sources can make for a strained working relationship, Woodland Record publisher Jeff McCallum said,” the Democrat reports.
Jeff McCallum runs a site in Woodland that is similar to ours. “McCallum, who has waited up to 45 days for documents, views the county’s public records process as disorganized. Requests to the City of Woodland have never been met with any delays because there is one person handling all the request and streamlining the process, McCallum said.”
“The county simply needs to put one person in charge of public records,” he said. “Then, the designated person needs to become an expert on the Public Records Act to ensure compliance.”
The Democrat continues, “David Greenwald, editor of the People’s Vanguard of Davis, said because the average person is not an expert on the law and will not seek legal action, ‘it almost invites a government agency to withhold documents.’ “
Mr. Cederborg conceded that the request took too long. “That request shouldn’t have taken as long as it did,” Cederborg conceded, adding that the request came at the same time many others were requesting information about the budget. “We consider records requests part of the business of the county but sometimes you have to prioritize. He got the response but did not get it as soon as he would have liked.”
No, Mr. Cederborg has it wrong here, it is not at issue that I did not get the response as soon as I would have liked. It is at issue that I did not get the response as soon as the law requires.
The Daily Democrat also talked to Jim Ewert, counsel for the California Newspaper Publishers Association. The media are always attempting to get these kinds of public records and most of the major cases involve the California NPA. He told the Democrat, agencies don’t want to give out more information than necessary and will often defer to their lawyers. He said they are testing the waters to determine the probability of getting sued for withholding information.”
“That is unfortunately what happens nine times out of 10 — the agency will make that risk calculation of whether they are going to get sued and usually the person walks away with their tail between their legs,” Mr. Ewert said.
“Even if an agency uses legal counsel, that is in no way an excuse for a delayed response time. Not everything is instantly available in document form, but might require discovery that an agency might say is ‘unduly burdensome,’ Ewert said.”
Mr. Ewert encouraged people seeking information to utilize the Public Records Act. “It may be a long process and to that end, be persistent,” he said. “Don’t take no for an answer and if you’re denied, ask why.”
Unfortunately, I will have no choice but to litigate all future matters which is a waste of money for a cash-strapped county, but no one appears to be able to fix this problem. Matt Rexroad has attempted to help me numerous times and is himself now frustrated.
I am now considering filing a complaint with the County Grand Jury.
—David M. Greenwald reporting