Council votes to appeal disclosure ruling

ENCINITAS — After a two-hour closed session June 3, City Council voted to appeal a judge’s ruling that requires the city to disclose a draft report of road conditions that it previously refused to release to the public.
The 4-1 vote, with Councilwoman Teresa Barth dissenting, came after half-a-dozen speakers urged the council to comply with the judge’s ruling and make the draft document public. Tony Kranz, a former City Council candidate, asked the council to make its deliberations public.
Barring a public hearing, he said residents have a right to know the rationale behind the council’s vote especially given that an appeal would result in additional taxpayer dollars being spent.
“I think that it’s a waste of money,” he said after the vote. “The likelihood of prevailing on an appeal is remote.”
Kranz said his “only regret is that the City Council ran behind closed doors to decide to appeal.”
Judge Timothy Casserly ordered the city to release the draft study of road conditions prepared by Nichols Consulting Engineers, May 24.
Kevin Cummins, a local resident and frequent critic of City Hall, sued the city after it refused to disclose the public document.
Casserly said that because the final report was already released, allowing the public access to the draft would do no harm.
“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,” he wrote in his final ruling. He also said no precedent would be set by allowing the draft to be released because the California Supreme Court has held that public records lawsuits are evaluated on a case-by-case basis.
The city cited the deliberative process privilege in its argument for not releasing draft documents to the public. But Barth was not swayed in this instance.
“The courts have been very clear that this privilege is not absolute and must be applied on a case-by-case basis,” she said. “The judge’s ruling found, that in this case, there is no clear overbalance on the side of confidentiality to justify nondisclosure.”
Barth further reasoned that a bright line rule on what the city could disclose to the public and when, would only come from the creation of a so-called “sunshine ordinance.”
“Transparency is the foundation of an ethical government,” she 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.”
Cummins blasted the council’s decision to appeal.
“This all could have been avoided at multiple stages if the council had been willing to openly discuss this issue and follow the letter and spirit of the law,” he said.
“The closed session documentation shows what a mess they (the city) made. They can’t get out of their web of deceptions,” he said. “The draft (report) was dated December 2009, the final March 2010, and in summer 2010 denied the public access to the document saying it was still draft, and changed their story when they got to court,” he said. “They were simply trying to avoid releasing the report.”
“The California Constitution clearly states ‘The people have the right of access to information concerning the conduct of the people’s business, and therefore…the writings of public officials and agencies shall be open to public scrutiny,’” Barth said.


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