A couple of weeks ago, the city of Eureka put out an odd press release aimed at the North Coast Journal and its requests for public documents pertaining to the Palco Marsh homeless encampment evictions. The press release suggested that the NCJ was somehow in cahoots with the ACLU, and was using the California Public Records Act for some kind of shady business.
Also, the city said that the NCJ was just being a major pain in the ass by filing overly broad requests for vague categories of documentation generated over the space of a year and more. Such requests, it said, were eating up a massive amount of staff time and other city resources.
After some back-and-forth (which was chronicled by Thad Greenson here) Eureka ended up providing some of the information that reporter Linda Stansberry was seeking. It declined to provide the bulk of it. In her response to the paper, Day-Wilson claimed that most of the documents the NCJ was looking for – correspondence between the city’s staff, its elected officials and the public – would not be disclosed, for a couple of reasons. For one, she said, the city was being sued over the issue. For another, these letters and memos and emails and the like represented the city’s “deliberative process.” In Day-Wilson’s reading of the Public Records Act, the documents were therefore exempt from disclosure.
But this reading is at odds with the common understanding of the Act, as least as it exists among journalism community. Yes, there are exceptions to the general rule that documents generated by public agencies belong to the public, and must be handed over to anyone who requests them, but those exceptions are generally much narrower in scope. Certainly they would not apply to correspondence between, say, the chief of police and a city council member over matters of city policy.
Which led us to wonder: What’s going on here? Does the city routinely deny requests for documents under shaky legal reasoning? Or is it spiting the NCJ in particular – maybe because of the sheer volume of the documents at issue in this particular request, maybe because Greenson has spanked and shamed the city over public access before, and is threatening to do so again?
To get some insight, the Outpost turned to an old staple of journalism workshops and conferences everywhere: We made a Public Records Act request for all the Public Records Act requests received by the city over the last few weeks, and for the city’s responses. This is generally taught as a technique for stealing your competitors’ scoops out from underneath them, but in this case it would serve to get a feel for what the city’s up to, here.
We filed this a couple of weeks ago, right after the city’s NCJ-scolding press release went out. The city responded in a timely fashion, sending us the back-and-forth over a dozen Public Records Act requests it had received since April 1. These included the two requests from the Journal. Here, check it out before we go further, if you like:
At the second link, there, you find the various things that people have been asking the city for since the beginning of April. The Bayshore Mall’s security firm wants crime stats pertaining to the Bayshore Mall, and Motel 6 wants crime stats pertaining to Motel 6. Former city councilmember Mike Newman, an insurance salesman, is looking for records of new businesses registered in the city, presumably so he can sell them insurance. The law firm of Zwerdling, Bragg, Mainzer & Firpo wants to know about what the city is doing about the evidently crappy sidewalks near its office. Someone wants the city’s garbage disposal contracts. An investigator with the Department of Consumer Affairs is looking into a local pot doctor’s clinic.
In every case other than the NCJ’s, these petitioners’ requests seem to have been granted in full, with only personal contact information redacted.
The most useful compare-and-contrast with the NCJ’s experience, though, is contained in local attorney Andrew Stunich’s firebrand letter to the Eureka City Council threatening a lawsuit over the HumCPR/Betty Chinn Center shipping container village in the Mercer-Fraser parking lot at Third and Commercial Streets. (The LoCO wrote about it at the time.) Not only do they cover a related topic, they ask for almost exactly the same types of documents.
But Stunich gets what he asks for, apparently without fuss, while the city blanket-denies the NCJ until it starts threatening legal action, and even then withholds the bulk of the documents the paper seeks.
Here’s the relevant part of Stunich’s letter:
Pursuant to California’s Public Records Act, please provide me with copies of all City of Eureka documents and electronic communications wherein Council Members have considered, debated, referenced or written about the 3rd and Commercial Street Shelter Project.
In addition, please provide me with all documents that constitute the notice, if any, that was given to both the general public and to nearby business and property owners regarding the 3rd and Commercial Streets Shelter Project. Please provide all internal documents, other than those covered by the attorney-client privilege, wherein any employee or consultant references, analyses or mentions the 3rd and Commercial Street Shelter Project.
Here are the relevant parts of the NCJ’s:
Any and all written correspondences to and from members of the city council and the mayor regarding homelessness within city limits from Jan. 1, 2016 through April 7, 2016.
Any and all written correspondences between city department heads — including Police Chief Andrew Mills, Community Development Director Rob Holmlund, Personnel Director Gary Bird, Finance Director Wendy Howard and Parks and Recreation Director Miles Slattery — the city manager and city attorney regarding the Devil’s Playground, the Palco Marsh and homeless encampments between Feb. 1, 2015 and April 7, 2016.
So Stunich seeks all communication generated by the city’s staff and elected officials about the container village. The Journal seeks all communication generated by the city’s staff and elected officials about the Devil’s Playground homeless encampments. Why was the NCJ denied when Stunich was accommodated?
In her follow-up emails with Greenson, the Journal’s news editor, Cyndy Day-Wilson is a little bit all over the map. At one point, she states that the city is “suspicious of the motives” of the Journal’s request, given that it is apparently somewhat similar to an earlier request filed by the ACLU. This is nonsensical and apparently intended only to snipe at the paper — the Public Records Act does not provide for a public agency to gauge whether or not a document is public record depending on what it deems to be the motive of the person requesting it.
Her point, though, is to attempt to evoke the “pending litigation” exception to the Public Records Act — Government Code §6254(b), which you can find at this link. She’s talking about the Peter Martin-led lawsuit on behalf of certain Palco Marsh residents. Day-Wilson writes:
Accordingly … some or all of the information you requested in your PRA may pertain to pending litigation in which the City is now named or anticipated litigation; therefore making that information exempt from disclosure until the litigation has been adjudicated or otherwise settled.
There are two things to say about this. First, the city didn’t invoke it in Stunich’s case, despite the fact that he explicitly and unmistakeably threatened to sue the city in the very text of his Public Records Act request, and clearly intended to use the results of his request for document to construct his case. Presumably this passage from Stunich’s letter …
My purpose in writing to you is to give as much advance notice as possible that my clients intend to seek an injunction to prohibit the proposed homeless camp at 3rd and Commercial Streets and to file a lawsuit for damages related to the pending homeless camp.
… would be more than enough to cause the city attorney to “anticipate litigation,” and so to withhold documents, as she did in the NCJ’s case. But she did not.
Perhaps she did not because the documents requested by both Stunich and the Journal — or the great bulk of them, at least — are not covered by the “pending litigation” exemption at all. The exemption pertains only to documents directly prepared in connection with a lawsuit, such as communications between city officials and their attorney. They do not cover whatever documents the city possesses that might somehow touch on the subject of a lawsuit. (The Reporter’s Committee for Freedom of the Press has a little write-up here.)
The other reason Day-Wilson gives for not releasing documents requested by the Journal is the “deliberative process privilege,” which, she says …
protects “mental processes by which a given decision was reached” and “the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated.”
Once again, Day-Wilson is almost certainly wrong to think that this protects the city — check out the discussion under Item No. 10 on this Californians Aware flyer — but leave that to one side. Once again, if she believed in this exemption she would have been perfectly able to protect the city’s sausage-making from Stunich and his clients. Once again, she did not.
In the end, there are only two real differences between Stunich’s request and the NCJ’s, apart from Stunich being Stunich and NCJ being NCJ. For one, Stansberry specifically requests presumably privileged communication with city officials and the city attorney, while Stunich specifically excludes such communications from his request. That shouldn’t much matter. The city could and probably should have said “OK, we’ll give you what we have except for X, which is protected by attorney-client privilege.” Instead, the city used this minor slip as part of its excuse to roundfile the whole shebang.
Secondly, the Stunich request is tight and focused on a particular issue which had only recently arisen, while the NCJ request is loose and sloppy and ranges over a long, long period of time. If we were to guess, we would guess that this is what really ticked the city off, the thing that sent it scurrying for whatever dubious legal rationale it could find to tell the NCJ to get lost.
Over the 14-month period mentioned in the second part of the NCJ’s request, the Devil’s Playground homeless encampment was the top item on the city’s political agenda. Every city department was working on it. The “written correspondences” the NCJ is looking for must run in the thousands and thousands of pages, and would take dozens or maybe hundreds of hours of staff time to assemble. And that’s even leaving aside the first part of the request — the three months’ worth of letters and emails between elected officials and the public regarding “homelessness.”
So you can see why the city would want to avoid that particular headache, but that doesn’t justify the flimsy legal reasoning for avoiding it. If the documents Stunich sought were in the public record, then the documents NCJ sought — all 100 trillion of them — were in the public record too. It’s a strange aspect of California law that any person can walk into any city hall in the state and demand that staff satisfy his document-related whims, no matter the cost to the public. It’s a strange aspect of the law, but it is the law.