A recent Civil Grand Jury (GJ) report documents how the cities, special districts, and boards & commissions in Contra Costa County, and County government itself, have dragged their respective bureaucratic feet when it comes to improving public’s right to access to public records.
The Compliance and Continuity Committee report (GJ Report #1501 below, beginning on page 25) evaluates municipal performance for compliance with a number of findings and recommendations from a number of past Grand Jury reports. GJ report topics ranged from training employees on how to report child abuse, to planning for technology, status of detention facilities, and improving county emergency operations.
But most interesting is its analysis of the disappointing progress toward implementation of California’s Public Records Act in Contra Costa County. Shockingly, but not unexpected, all but a few cities in Contra Costa are not in compliance with the GJ’s recommendations.
On a positive note, all but a few have implemented some of the Grand Jury recommendations. At the same time most have determined, for one reason or another, that certain recommendations are not worth the trouble.
Here’s a brief summary of the report that begins on page 25 of the embedded PDF below.
1. What is the California Public Records Act (CPRA)?
The California Public Records Act, passed in 1968 (California Government Code Section 6250-6270), is similar to the federal Freedom of Information Act (FOIA). When passed 47 years ago the legislature declared, “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
The CPRA declares that, “maximum disclosure of the conduct of governmental operations [is] to be promoted by the act by promoting prompt public access to government records. In sum, the CPRA is, “intended to safeguard the accountability of government to the public.”
2. Who is covered or not?
The CPRA covers all state and local agencies, including: (1) any officer, bureau, or department.; (2) any “board, commission or agency” created by the agency (including advisory boards); and (3) nonprofit entities that are legislative bod- ies of a local agency. (§ 6252(a),(b)). Many state and regional agencies are required to have written public record policies.
Exemptions include Courts (except itemized statements of total expenditures and disbursement (§§ 6252(a), 6261); The Legislature (§ 6252); Private non-profit corporations and entities; Federal agencies, which are governed by FOIA, U.S.C. § 552.
3. What is covered?
CPRA “Records” include all communications related to public business, “regardless of physical form or characteristics, including any writing, picture, sound, or symbol, whether paper,…, magnetic or other media.” (§ 6252(e)) Electronic records are included, but software may be exempt. (§§ 6253.9(a),(g), 6254.9 (a),(d))
Documents and information not covered include Employees’ private papers, unless they, “relate to the conduct of the public’s business [and are] prepared, owned, used, or retained by the agency.” (§ 6252(e)); some bespoke computer programming; and records not yet created (no rolling requests for future documents are allowed). Additional records are exempt, including attorney-client discussions, records that impair a body’s deliberation process, only if the need for secrecy outweighs the public interest.
For more about the CPRA see Ballotpedia. Download the Pocket Guide to the California Public Records Act, a detailed 2 page document which was funded by the Sigma Delta Chi Foundation of the Society of Professional Journalists. See also Californians Aware for open forum laws.
In 2003, California passed the Brown Act governing open meeting laws. In 2004 California voters passed Proposition 59, which amended the state constitution to explicitly recognize the “right of access to information concerning the conduct of the people’s business,” and to provide that, “the writings of public officials and agencies shall be open to public scrutiny.”
By 2012, Counties across California began implementing their own, so-called Sunshine Laws. These went beyond the specifics of the CPRA. See Contra Costa County’s own Better Government Ordinance of 2012, that brought some Sunshine to government meetings, especially those of Special Districts, Boards, and Commissions. The ordinance addressed failures to make available records including meeting schedules and announcements, making agendas available, records of business conducted, monies spent, and allowing public access and comment at public meetings.
48 years after CPRA
Half a century later, according to the 2014-2015 Contra Costa County GJ,
The (CPRA) Act, however is complex and flawed. Employees responsible for fulfilling CPRA requests do not always respond in the manner required by the law. Contra Costa County has adopted a Better Government Ordinance; it allows the public even greater access to government records and information and clarifies some of the uncertainties of the ACT. The practice of making public records available on a governmental entity’s website is an economical and practical means of complying with the Act.
5. What are the Grand Jury findings and recommendations?
In its report Grand Jury 1405 published in May of 2014, the GJ found that a) response to CPRA requests by cities and special districts [within the County] is uneven; b) that many employees tasked with dealing with CPRA requests from the public are ill-trained; and c) that many valuable records including Form 700 (Economic Interests of elected officials and appointed board and commission members), annual audits (!), travel & entertainment expenses, and supporting agendas and documents for public meetings, could be made available on city operated websites.
The GJ recommended that 1) cities and special districts ought to adopt policies expanding the rights of public access to public records. 2) That agencies better train employees dealing with CPRA requests. And 3), Those agencies consider making certain records:
(This list is important for analysis below)
a. Statements of Economic Interests
b. Employment Contracts
c. Annual Audits
d. Travel & Entertainment expenses
e. Agendas and supporting documents for public meetings
6. Brief survey of who has or hasn’t stepped up.
As for Item #1 (adopt policies of rights of public access). The 22 agencies in compliance include:
– Contra Costa County Board of Supervisors
– City of Brentwood
– City of Lafayette
– Town of Moraga
– City of Oakley
– City of Orinda
– City of Pinole
– City of Richmond
– City of Walnut Creek
– Oakley Elementary, the Brentwood, Lafayette, Moraga, Orinda, Pittsburg, San Ramon USDs, and County office of education
– Contra Costa Water District
– Pleasant Hill Parks & Rec
– Diablo Water District
– West Contra Costa Health District
– Contra Costa Fire Protection District
– Crockett-Carquines Fire Protection District
Thats’ it. 13 months later, 26 agencies from the City of Antioch to Mt Diablo Unified School District, report that this recommendation to support the public’s right to public records, “requires further analysis,” or “will not be implemented because it is not warranted or is unreasonable.”
Compliance with Item #2, to train employees working with CPRA requests has been better received by all but the City of Walnut Creek, Lafayette School District, Walnut Creek and West Contra Costa Unified School Districts, plus the Kensington and San Ramon Valley Fire Protection Districts.
Recommendation #3 is the battle field. Only six municipalities or districts are in full compliance having implemented all five items listed above. Congratulations to: El Cerrito, Hercules, Oakley, Brentwood USD, Oakley Union Elementary SD, and the Contra Costa Water District.
Recommendation #3 must be a puzzler, as the City of Pleasant Hill, Moraga School District, Moraga-Orinda Unified Fire District, say they require further analysis of the matter. The Moraga-Orinda Unified Fire District has declared they will not implement any of the five recommendations listed. Overall, 33 other agencies, including the County, cities, and districts have declared that they will implement some of the recommendations but not others.
7. Breakdown of objections; a pattern forms
Many agencies report that some or most of these sticking points will be implemented at some future time. One common grouping appears to implement section c and e (travel & entertainment expenses and meeting agenda and documents) but eschews implementation of items a, b, and d. There are variations, but the most common sore point is making access to travel & entertainment expense reports easily available to the public on the agencies’ official website.
8. Reasonable explanations
It’s more than a little curious as to why some agencies have already implemented all of the recommendations and some have not, will not, or continue to dither.
The City of Oakley in East County, for example, has already implemented all of the items recommended by the GJ report, including all those found listed in Recommendation #3. Oakley’s City Manager Bryan Montgomery told the Contra Costa Bee,
My recollection is that we felt comfortable stating that this recommendation has been implemented when we have, through a software program called ImageSilo, made all public records available through our City’s website. I believe many of these other cities have similar software, but they may not have scanned all of the listed items.
The largest city in the County, Concord, reported that it will not adopt a policy to expand the right of public access to public records. It has implemented the training for handling CPRA record requests. And it has implemented Recommendation #3, sections a, b, c, and e, but considers section d (travel & entertainment expenses) unwarranted and not reasonable.
According to city Manager Valerie Barone,
The Mayor and City Councilmembers travel only to and from activities deemed part of their responsibilities as elected officials. The funding for these trips is approved as part of the annual budget at a public meeting.
All travel requests and reimbursements are processed according to City Policy for compliance with state law and Concord’s own rules.
Tracking and posting the information as expenditures occur would place an additional burden on sorely overburdened Administrative and Information Technology staff. As you know from having been on the Measure Q Oversight Committee staffing was reduced by 25 percent during the recession and workloads were not.
Add our short staffing to the fact that almost no requests for this information have been made by residents or anyone else for that matter. In fact, in my three plus years as City Manager I’m not aware of a single request.
We would and do make the information available if requested by any member of the public or media–but as I’ve said, if that happens its rare. Consequently, I believe that Concord’s approach strikes an appropriate balance between the City’s commitments to both fiscal responsibility and governmental transparency.
9. And then there’s Tom Butt, the Mayor of Richmond.
The Contra Costa Bee sent the same request for information (see below the embedded PDF) to Mayor Butt on June 23. The letter asked if Butt or the Richmond City Attorney could please comment on Richmond’s decision to not make records, particularly contracts and entertainment & travel expenses, available on that City’s website. Butt did not answer.
The Contra Costa Bee sent a second request on June 29 and Ccd the City Attorney, Bill Lindsay. Neither responded as of July 3rd. Unfortunate but educational.
Butt lavishes praise on left leaning fellow travelers at the Contra Costa Times, SF Chronicle, East Bay Express, and the UC Berkeley journalism students that publish the Richmond Confidential. But he makes no bones about his dripping disdain for the Contra Costa Bee and any other independent news sources who aren’t down for the struggle and with whom he doesn’t agree; finding ideological demons and personal grudges wherever convenient. In fact, he publicly disparages opponents real and imagined not as a private citizen, but in his capacity as an elected member of Richmond City government. Classy.
Yet, when it comes to public access to the business he conducts for the City, Tom Butt, the Robespierre of Richmond, cleverly hides those records from public scrutiny because
Mayor Tom Butt uses his own business email account to conduct City of Richmond business.
Yes. Just like Hillary Clinton, Tom Butt, the Mayor of Richmond, is hiding behind the use of his own business email address for his elected capacity as the Mayor of Richmond. He doesn’t have to disclose or be accountable for any emails to that address. Furthermore, on the City of Richmond website,
Mayor Tom Butt also lists his company’s phone information as the official way to reach the Mayor of Richmond.
Butt, who founded an architectural firm in 1973, makes a lot of money in and around the City of Richmond on both public and private contracts. But there’s no telling what mingled business, pay to play, or personal pograms Butt is concocting on behalf of himself or the City of Richmond. You don’t need to know.
To their credit council members Beckles and Myrick manage to use official City of Richmond email accounts. Unfortunately, Councilmembers Nat Bates (@comcast) and Gayle McLaughlin (@definingyourdestiny(!)) also use their personal emails for city business.
You ask…”what happened to the claim that CPRA “Records” include all communications related to public business?
10. The Empire Strikes Back!
The problem is public officials elected and otherwise use private non government email addresses for official government business and communications (with residents..or worse) as a clever way to avoid Public Records requests laws.
Most recent case law in California (Smith v San Jose, 2014 in Superior Court Appellate Court) holds that individual office holders are not “public agencies,” so they have a right to withhold “personal communications.”
There’s transparency and fair dealing for you in the workers’ paradise of California and the tragic-comedy that is Richmond city government teetering on the edge of bankruptcy.
The battle for transparency and unmasking self-styled Grand Poobahs like Tom Butt and their disdain for the public’s rights is ongoing. If the results of the Grand Jury report is any indication, the public is losing.
Last year, Governor Jerry Brown and the Democrat controlled State Legislature tried to limit severely the public’s right to know what their government is up to by pulling $20 million of state funding for local government agencies to respond to requests made under the Public Records Act, that was originally signed by Governor Ronald Reagan.
Letter to Tom Butt at his business email address of June 23
Hello Tom, I’m writing a story for the Contra Costa Bee, on how various cities are (or not) implementing the Grand Jury report 1501 / recommendation #3 re disclosure of certain public records under the CRPA on their websites.
The recent GJ report on Compliance notes your city and may others in Contra Costa County have not or will not implement some or all of the recommendations (see beginning page 30 of PDF attached below).
It is interesting to note a pattern in either cities accept items a,b,c,e and reject d
a is rejected with b,c,d,e implemented.
Your city as rejected (b – contracts) and (d travel & entertainment expense reports)
Could you or City Attorney or City Manager please provide comments on
1) the recommendations in general and issues municipalities’ reporting capabilities, and
2) the reasoning your specific items recommended in the GJ document.
Thank you in advance for your cooperation. Please call me with any questions.
HTML source for the Tom Butt Profile Page on the City of Richmond Website as of July 3, 2015.
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