National Lawyers Guild Opposes Cities’ Move to Stop Providing Records because of COVID-19

By Crescenzo Vellucci
Vanguard Sacramento Bureau Chief

SACRAMENTO – Cities in California – claiming they are already bogged down with the cost of fighting the COVID-19 pandemic – are now urging the governor to suspend numerous state laws because they’re simply too busy to do the work.

One big state law the cities want to ignore is the state public records requirement.

Specifically, the League of California Cities wants to avoid requirements under the California Public Records Act, a law that gives transparency to taxpayers about how elected officials make decisions and spend public money – news media and private nongovernmental watchdogs use the CPRA regularly.

Under the law, public agencies, including agencies, have 10 days to respond to a request for information, although lawyers, media and others have complained the process often drags on for months.

Civil liberties groups have jumped up to stop the gambit by League, which represents about 500 cities.

“Sweeping amendments in light of the pandemic have trickled down to every area of our systems and institutions. Our due process rights and the Constitution are in the state of suspension as executive orders are issued without the ability to honor the formalities of process,” said Elizabeth Kim, president of the National Lawyers Guild, Sacramento Chapter.

But while Kim and other civil libertarians are currently accepting many of the new restrictions of freedom because of the urgency of the COVID-19 pandemic, their tolerance only goes so far.

“Transparency is a non-negotiable necessity to the public,” declared Kim, noting that “As these emergency executive orders are rapidly issued, the impact to the community is unconscionable and must be scrutinized.”

“The abject need for transparency should be ever more pressing now, given that any allocation of funding remains and is always crucial in its impact to the economy and public health. During an emergency, the risk of misappropriation and mismanagement are heightened, especially in the absence of contingency planning. Transparency is a non-negotiable necessity to the public because all actions taken by our officials will quite literally determine life or death,” Kim explained.

The League denies it wants to stop completely from complying, but needs “flexibility” because of furloughed staff and other COVID-19 situations, reportedly claiming that much of their work now relates to the pandemic.

“But cities almost never comply, and the League knows that. This letter (to the governor) from the League is not about giving agencies slightly more time to conduct PRA searches, it’s about suspending all access to public records by allowing cities to simply ignore requests for the duration of the COVID-19 crisis,” charged said Abenicio Cisneros, a public records attorney and NLG San Francisco member.

He maintains “government transparency is not a luxury cities can simply stop providing. Members of the public have a constitutional and statutory right to access government records. Arguing that cities should suspend all access to records under a claim that transparency is ‘non-essential’ shows a hostility to those important public rights.”

Cisneros, who wages battle for clients often on a pro bono basis with public agencies, argues that “Far too often, even in good times, cities refuse to allocate sufficient resources to providing public records promptly. This isn’t a resource question. This is a question about priorities. The COVID-19 emergency may reasonably cause some delays in responding to public records requests, but there is no reason whatsoever that agencies should suspend all access to public records.

“Practically speaking, cities can continue to locate, review, and produce many public records, even if public employees are working from home. Morally and legally speaking, cities continue to have an obligation to operate transparently, especially in the midst of a pandemic,” Cisneros said.

Some civil libertarians claim there are other options other than to just opt out of the CPRA.

“Unlike the criminal justice system that has been forced to make concessions in how it operates to save lives, we cannot allow the same leeway to the government’s duty to inform the public. Technology is available to easily do this. Staff can connect remotely to work computers and continue working from home,” suggests Danny Garza, a NLG, Sacramento Chapter board member.

“I can only assume the real reason for this request is being made is more to remove accountability than it is the inability to meet the need. In my exchanges with public entities regarding PRA requests, if they can’t meet a deadline, they ask for more time and grant themselves more time. We are in this crisis together, and we can all be reasonable about what to expect right now – if they need a little more time, fine,” he said.

But, Garza noted, “It is not reasonable for local governments to ask for blanket permission to abdicate their duty to keep the public informed of what they are doing. That is not acceptable. Adapt, improvise, and overcome – figure it out, or put someone in charge that can figure it out.”

Mark Reichel, a criminal law and civil rights attorney in Sacramento, acknowledges that there is now a conflict obtaining information from government entities.

“There is, to be honest, already a little bit of conflict. You don’t obtain information right away,” said Reichel.

Regarding the proposed new rules, Reichel noted “All of us should be concerned and not agree to that. The constitution says that power of government is at its apex right now. Any attempt to prevent first amendment access is wrong; In fact, the public’s access to information should be at an apex. If nothing else, timelines for responses should be streamlined.”

Kim concern about certain rights being waived is, in fact, happening. The mayor of San Francisco suspended the city’s Sunshine law, other municipalities have barred the public from attending, and courthouse make it difficult to obtain information about ongoing criminal and other proceedings.

About 130 media and watchdog groups have, as Reichel said, urged local governments to provide more information, not less in response to requests.

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About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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1 Comment

  1. Tia Will

    During an emergency, the risk of misappropriation and mismanagement are heightened, especially in the absence of contingency planning. Transparency is a non-negotiable necessity to the public because all actions taken by our officials will quite literally determine life or death,” 

    I would say that the current pandemic sweeping across the US is a powerful illustration of why governmental transparency is so critical. This is emblematic of the need to prioritize public scrutiny of governmental policy and actions rather than further obscure them.

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