Open government laws questioned at city hall

ENCINITAS — The city’s recent loss in a Superior Court open records case has some in the community questioning whether an ordinance specifying the parameters of access to documents should be in place at the local level.
As a result of the legal defeat and the court’s subsequent denial to grant the city’s appeal of the original decision, the City Council discussed the document review and release policies during a regular meeting July 20.
“Transparency is the foundation of an ethical government,” Councilwoman Teresa Barth said. “Local policies that go beyond the minimum requirements of the Brown Act and the Public Records Act help to strengthen public trust and confidence in their government. That is why I support a Sunshine Ordinance for the city of Encinitas.”
But Mayor James Bond said he was afraid open government laws have created an insurmountable administrative and financial burden on government agencies.
“Government is spending more and more time, more and more money and more and more resources chasing around Freedom of Information requests that can come from anybody,” he said during the meeting.
Bond added that draft versions of documents aren’t always complete or accurate and can cause confusion. Glenn Sabine, the city’s attorney who defended the open records request lawsuit, made a similar argument during court proceedings.
Councilman Jerome Stocks is on record supporting a “case-by-case” approach to disclosing documents that are not obvious under state law.
But some residents are suspect of the process of making city government transparent. “It’s incumbent on the council to set the standard,” said Sarah Fenton, who recently moved from Berkley, Calif. where a sunshine ordinance exists. “When you start leaving it up to the discretion of individual staff members on what to disclose and what not to disclose to the public you get into trouble and nobody really understands what the standard is.”
Barth agreed that the more the public knows the better. “A clearly established policy of open meetings, easy access to public records and accountability will increase the public’s trust and confidence in government,” Barth said.
According to ethics scholar Judy Nadler, a Senior Fellow at Santa Clara University, every state in the U.S. has some variety of law mandating that all government business be conducted in open meetings to which the public has access in order to protect transparency in government.
Nadler goes on to define transparency as the ability of citizens to “see through” the workings of government and “to know exactly what goes on when public officials transact public business,” she said.
However, not all government matters are subject to public scrutiny. Issues, such as real property negotiations and matters pertaining to pending litigation can be handled in so-called “closed sessions.”
Personnel issues are another area; one where privacy concerns may justify closed meetings. The Brown Act “provides for closed sessions regarding the appointment, employment, evaluation of performance, discipline or dismissal of a public employee.”
“Government that is not transparent is more prone to corruption and undue influence because there is no public oversight of decision making,” according to Nadler.
During a June 10 special session meeting, the council voted 4-1 (Barth opposing) not to pursue what is called a “sunshine ordinance.” Several members said the city has exceeded the requirements of the state’s open-government laws by putting records online, including campaign finance records.
“I proposed a citizen’s task force to work with staff to craft a sunshine ordinance,” Barth said. “My colleagues, while admitting to past problems, said a sunshine ordinance was not necessary. I disagree. Without a written policy it is too easy to ignore and abuse state open government laws.
In fact, Barth said technological advancements have made the need for such a law even more urgent. “I have often wondered how appropriate it is for council members to have their phones with them at meetings,” she said. “Should they be accessible via text messaging from a person who wants to influence their vote but not speak publicly?
“The right of the people to know what their government is doing is fundamental to democracy,” Barth said. “Not only do they have the right to know what decisions have been made, they also have the right to participate in making those decisions.”

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