City defends lack of public disclosure

ENCINITAS — Attorneys representing the city of Encinitas in a Vista courtroom on May 20 defended its refusal to hand over a consultant’s report that addressed the state of local roads and necessary repairs.
Kevin Cummins, a local resident and frequent critic of City Hall, sued the city after it refused to disclose the public document. “The city routinely buries upsetting information by denying the release of public documents,” Cummins said after arguments were heard by Judge Timothy Casserly.
Cummins said the document in question was finalized in September 2010, but submitted to city staffers six months earlier. When he made a formal request for the consultant’s report submitted in March and for all related documents leading up to its acceptance by the Encinitas City Council, he was denied.
Attorney Dennis Winston argued that the city had no interest in keeping the document from the public and was in violation of the California Public Records Act. After litigating numerous cases with similar issues, Winston said the practice of keeping documents from the public is commonplace.
“It happens way too often,” he said. “Normally you would expect any local entity to comply with the public records act request, but that’s not always the case.”
But City Attorney Glenn Sabine opined that the draft of the document was not yet a public record. In fact, he said that public scrutiny during the draft phase of a document would interfere with the work product.
“Let the staff do its job,” he said.
But Cummins wasn’t convinced that was the issue.
“If they (the city) do eventually release a document it has been totally sanitized,” he said. “The city’s position is ‘the public shouldn’t be allowed to see how much their reports had to be manipulated.’”
In fact, other documents, such as environmental impact reports, are required to be released to the public in draft form and comments are solicited.
“Admittedly this is a public record,” Winston said, adding that unlike EIRs which are governed by special statutes that require a draft to be released to the public, this report was subject to a balancing test.
“If a draft of a document is not normally saved and the public interest of disclosure is not clearly outweighed by the public interest in keeping it confidential, then it should be made available,” he said.
Winston advocates disclosing most records with certain exceptions including employee evaluations, real estate negotiations and attorney-client correspondence.
“Governments work very hard for us, but I don’t subscribe to the city’s position that the public just gets in the way,” Winston said.
“What’s to be gleaned from releasing these draft documents as opposed to what the harm can be?” Sabine asked rhetorically in court. “What can be gleaned from those draft documents can be gleaned from the final document, more so because it’s accurate.”
Assistant City Attorney Greg Lusitana said releasing draft documents can create problems for staff.
“The city needs to be able to have a decision-making process free from second-guessing by public questioning of funding options,” Lusitana said. “Let them get to the process where they can prepare a draft that then gets submitted to council and then that’s when the public review process takes place.”
But the public is not a mere nuisance during the process of creating documents.
“It’s their money, their government and they should know what is going on,” Winston said.
Cummins was adamant that questions raised by the public were crucial to creating a transparent government and that failure to do so was harmful to the governing process.
“The irony is that the citizens pay more attention to the city trying to cover up bad news than what is in these reports,” he said. “These guys have to learn that citizens don’t like to hear about cover ups at city hall.”
“After an analysis of the city’s position,” concluded Judge Casserly,”it is unclear how the release of the resulting report would affect its decision making process, as the request was made only after the process was complete. Regarding the city’s concern regarding the burden of future requests should the petitioner’s request be granted, the Supreme Court has already declared that such concerns are without merit, as a case-by-case analysis is required when making determinations on such requests. Any negative public reaction or confusion from potential, not confirmed, errors in the drafts are speculative and do not clearly outweigh the public interest in disclosure.”

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