Sacramento County wants to charge The Sacramento Bee $105 per hour or 10 cents per “page” for electronic records to fulfill a request for documents made under the Public Records Act.
The city of Sacramento held back on emails involving the mayor because he sued to keep them private after media companies made PRA requests.
Cal Fire and the CHP refused to release to The Bee the results of an almost $2 million investigation into employee wrongdoing, saying it was confidential and exempt from the Public Records Act.
Are these reasonable actions by public agencies? Or have we taken a step back in transparency in California?
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The public’s right to documents that reveal decisions and actions by public officials is protected by law, but the edges of that law regularly are a point of conflict. Sometimes reporters or private citizens can negotiate documents they want. Sometimes negotiations turn into a lawsuit, like our bid to obtain names of police officers tied to the pepper spraying of students at UC Davis. The Bee and the Los Angeles Times won after spending almost a quarter-million dollars to pursue the case up to the California Supreme Court.
We think most records should be public. But the law allows for exemptions, including certain investigative records, those protected by attorney-client privilege and certain personnel records.
That plays out differently depending on the record, the reporter and the agency or official. In the case of the California Highway Patrol investigation of the California Department of Forestry and Fire Protection, Bee Capitol Bureau Chief Dan Smith said, “We haven’t had much luck.”
“The CHP will not give us the investigative narrative that was done after spending $2 million to investigate because, they say, they did the job for Cal Fire and it’s their property,” Smith said. “And Cal Fire won’t give it to us because they say it’s an investigation and not public record.” Instead we obtained some of the details when Cal Fire employees appealed their discipline to the State Personnel Board, which released documents tied to those individuals.
The Public Records Act requires agencies to figure out within 10 days of a request whether records can be disclosed to the public. They may extend that time limit for unusual circumstances, but not more than 14 days.
The State Controller’s office spent four months writing a program to provide the information for a Bee records request.
Think about a big breaking story and the need for documentation that answers questions. A reporter could submit a PRA – our shorthand for a document request – and not obtain any documents for weeks or even months. That’s allowed by law, especially if a PRA request is complex.
While that’s not the norm, it happens too often. When Charles Piller was investigating shoddy construction of the new San Francisco-Oakland Bay Bridge, it took 20 months before the California Department of Transportation provided some of the records he had requested.
Bee reporter Brad Branan, however, filed multiple PRA requests in the aftermath of a July 3 apartment stairway collapse that killed a man, getting almost immediate response.
Contrast that to the city of Sacramento. In May The Bee made requests for documents regarding a sexual harassment claim against Mayor Kevin Johnson and also the use of city resources tied to Johnson’s work for the National Conference of Black Mayors.
By mid-June we had some of those documents, were denied others, and were waiting for more. That’s when we learned that correspondence between Johnson and an attorney representing the National Conference of Black Mayors had been captured on city servers and was subject to the PRA. Johnson and his attorney were fighting release of the emails, claiming attorney-client privilege.
Reporter Marissa Lang emailed Johnson’s personal attorney David Pittinsky on June 25 to say emails “independently found by the city attorney” to fall under attorney-client privilege could be omitted from our PRA; we wanted the remaining documents while they fought over this slice.
It’s not clear whether attorney-client privilege protects these emails – and now that issue is in court.
Michael J. Benner, senior deputy city attorney for Sacramento, said in an email to Pittinsky that “the city’s stance is that it has no authority to assert the attorney-client privilege on behalf of outside counsel.”
Johnson, representing himself, the National Conference of Black Mayors and its bankruptcy trustee, filed suit against the city of Sacramento, its attorney and the Sacramento News & Review to prevent release of the documents. The lawsuit said The Bee had agreed to respect the privilege. Apparently they read over the “independently found by the city attorney” part of Lang’s email; we consider our original PRA still a valid records request.
It is unusual to have someone other than a public agency go to court to stop release of documents requested through the Public Records Act. That happened in the UC Davis pepper spray case when the Federated University Police Officer’s Association intervened to keep the names of involved officers secret.
More often, reporters face routine challenges to obtaining documents, such as unreasonable fees or delays. And – despite robust technology available today – too often records are kept only on paper, making it difficult to gather or analyze them.
$105 Suggested cost for campaign finance disclosure documents from Sacramento County
Last year Bee capitol bureau reporter Jon Ortiz waited four months while the State Controller’s Office wrote a program to compile data he requested. It was worth the wait and the cost, though, when Ortiz was able to confirm a tip that two types of employee transfers were used within state agencies to game the system so money budgeted for salaries could be spent on other things. The story was headlined: “California state departments play personnel shell game.” An audit later confirmed our investigation.
Where costs aren’t acceptable is with data that should already be online and free, such as campaign finance records from Sacramento County. Alice Jarboe, the assistant registrar of voters, told Branan that because the documents are “stored electronically in a proprietary computerized system” it would take two hours of staff time at an hourly rate of $105 per hour for his PRA, though the county would waive half the cost.
It comes down to this: The Public Records Act is invaluable, yet it’s just another document if public officials don’t adhere to its rules of transparency, and journalists or ordinary citizens don’t take the time or spend the money to ensure it is enforced.