Access Denied or Just Impaired?

by Linda Stedjee

I am an advocate of fair, open, and honest government, researching issues of concern to the residents of Morro Bay.  Of particular concern to me is the way our tax dollars are spent by City staff.  I work directly with other researchers, including some who also write for the SLO Coast Journal.  We identify and report to the public serious City government issues and problems that the average resident would otherwise not be aware of.  In doing so, we hope to encourage improvements in City government that will benefit all of us.  In order to accomplish our objectives, we need information on what really goes on behind the scenes, but getting information on the inner workings of the City of Morro Bay can sometimes be a real challenge.   

Among the costly and potentially-costly City staff errors our research has helped identify and bring to SLO Coast Journal readers are the staff's stream flow interference "study" on a dry stream,  their failure to adhere to State Water Resource Control Board (SWRCB) decision 1633 for 14 years, their widening the Embarcadero Road extension to a final width 20 feet over the maximum allowed by the CCC, their failure to notify Council and citizens regarding serious problems with City well fields for many years - while the water quality continued to deteriorate, failure to investigate the viability of proposed sites before designing boat yards to be located there, and their failure to adhere to commonly accepted practices when conducting Request for Proposal (RFP) processes. Our research has also helped to clarify the very precarious nature of the City's water supply and the City's failure to explore newer, less-expensive technology for the wastewater treatment plant upgrade. 

The California Public Records Act 

The primary means of obtaining information on City operations is the Public Records Access (PRA) request.  The California Public Records Act is designed to give the public access to information in possession of public agencies.  It covers " . . .  all communications related to public business regardless of physical form or characteristics, including any writing, picture, sound, or symbol, whether paper, . . .  , magnetic or other media."   According to the PRA, access is immediate, and is allowed at any and all times during business hours.   

While the PRA does not require staff to disrupt normal operations, it does require that response be prompt.  "Prompt" is not a word I would use to describe the City's response to my PRA requests.  Part of the problem has been a City Attorney-enforced practice requiring that PRA requests come through his office rather than being brought to the specific department holding the records.  This practice, which I have been required to follow since 2008, is not supported by the California Public Records Act or by documented City policy, and I believe it has been a primary cause of delays in releasing requested City records.   

Application of the Public Records Act in Other Cities 

I have contacted officials in Arroyo Grande, Paso Robles, and Pismo Beach, and learned that none of those cities follows such a practice.  The city attorneys of those cities do not interject themselves into the handling of every PRA request.  The officials I interviewed stated that persons may come directly to their city offices and request materials, and that if those materials are readily available (not in storage), they will be immediately provided.  While written requests are encouraged, they are not required.  They further stated that fulfillment of PRA requests may take longer when staff are ill or working on time-dependent projects.  In those cases, the requestor may be asked to return later or the next day. 

Morro Bay's Public Records Access - Policy Versus Practice 

Morro Bay's documented policy on PRA requests contains several references to the City Attorney, but contains no requirement that PRA requests be funneled through him.  The document does include statements that describe situations in which the City Attorney should be consulted.  For example, it says that, "Most records retained and used by the staff in their day-to-day operations are public records.  However, documents containing confidential or privileged information may be withheld, and in such cases it should be stressed that there is no substitute for obtaining legal direction from the City Attorney's office." It says, "Department heads and other management employees are encouraged to consult the City Attorney's office for advice before denying any public records request." It also states, "It is hoped that the checklist provided above is used by management personnel in responding to these requests and that the City Attorney's office will be immediately consulted if there is any uncertainty as to the City's legal options or obligations."   

On May 18, 2010, I sent the City Attorney an email challenging that practice of routing PRA requests through him.  I noted the contrast with the way my PRA requests were processed in Morro Bay.  His response seemed to indicate a change in position.  He stated, "You are welcome to come down to City Hall anytime to request documents. If they are readily available they will be produced. However, if the documents are not readily available, then the City will be given a reasonable period of time to produce the documents."   

I replied that this was positive news, and appeared to reflect a sudden change in policy.  This was denied in his reply, which said in part, "Not really a change in Policy. Attached is the City's Policy in regard to PRA request. For the most part your requests will continue to require legal review depending on the request."   When I replied that I was speaking of practice, not written policy, I received another response stating, "Our policy and procedures are no different than other any of the other city's you have mentioned.  Many PRA requests for the City do not have "legal review."  In fact, the documents you currently have requested have not been reviewed by me nor will they as there are more pressing issues.  The City will continue to process your PRA requests as quickly as possible." These statements do seem to contradict an email received on February 19, 2010, in which the City attorney re-confirmed his requirement that PRA requests had to be submitted to him, stating, "I have told staff that pursuant to our City policy, all PRA requests will be routed through my office."     

Failure to Provide all of the Requested Records 

Even when requested records are received, there can be problems when the information provided does not completely address the request that was made. For example, I submitted a PRA request for documents related to the WWTP Upgrade RFP process.  Among the items requested were the completed vendor evaluation forms.  My specific request was as follows:  "Documentation showing ratings of the responding companies against the evaluation criteria."   Only a blank form was provided in response. 

When I asked the City Attorney for the competed forms, he said, "The City is either not in possession of the material requested under request number 4 below, or the records are exempt pursuant to Government Code Section 6254(a)."  I interpreted this as an evasive answer. After demonstrating that the records were not covered by CGC Section 6254 (a), I asked the City Attorney to tell me which of the options he proposed was true.  Did the City have the documents or not?  He replied simply, "The City has responded to your public records request."   

I then complained to the City Council and subsequently received a letter from the City Attorney, stating that the completed forms did exist.  He said, in part, "Each committee member is informed to retain their own evaluation ratings score sheet in case there is a legal challenge.  The City has not received any protest or legal challenge from proposers. Therefore, there are no documents that the City can produce in regard to this request."  No explanation was offered as to why the forms completed by City staff members on the committee could not be provided. 

Delays in Responding to Requests 

Delays in receiving documents in response to requests have been frequent.  The City policy states, "The law requires that the City respond to each request within 10 calendar days.  (Section 6253(c))."  However, on numerous occasions ten calendar days passed and no response was received.  On May 19, 2010, I once again mentioned the lateness problem to the City Attorney.  He said, "If the 10 day deadline falls on a weekend or holiday it is extended to the following workday."  When I reminded him that the City policy specified "calendar days" and that included weekends and holidays, his response was, "I respectfully disagree with your legal analysis that would require a staff person to work overtime to complete a PRA request. I stand by my previous legal conclusion and I am quite certain a Court would agree with my interpretation."  I responded by noting that the commonly accepted definition of "calendar days" is consistent with this one from businessdictionary.com: "All days in a month, including weekends and holidays."  In general, if weekends and holidays are to be excluded from a specified time period, one uses the term "business days."  As of this writing, there has been no reply. 

City Council Response to a Formal Complaint 

In March, 2010, I issued a formal complaint to the City Council about some of the City's practices with regard to the handling of PRA requests.  I was subsequently advised that the issues had been discussed with the City Attorney. The Council's reply also referred to the "constant volume of requests" that I allegedly generated.  The allegation was not attributed to any specific individual.  I located all of the PRA requests I had sent in for the past two years, and found that, on average, I had submitted just over one request per month (1.067, to be exact), and provided this information to the Council.  I was also asked to address my requests to current issues - something that is simply not workable when doing research on long-standing problems and issues.   

Denial of Access to Records 

Sometimes, requests for information are denied outright and efforts to analyze and report the cause of problems are stymied.  In late 2008, residents filed a complaint regarding alleged waste of City water.  They stated that a water customer was running several large sprinklers day and night, and produced photographic evidence and witnesses.  Using an estimated flow of ten gallons per minute per sprinkler, a figure found on several Internet sites, the residents estimated that the customer had been dumping about a million gallons of water per month.  However, when a state agency investigated, the customer was able to produce several water bills showing very low usage.  Thinking that they might find a reason for the discrepancy by checking the layout of the water system in the area, the resident researchers submitted a PRA request for schematic of the City's water delivery system in the area. The City Attorney denied their request, stating, "It is the City*s position that open access to the schematics for the City water delivery system is critical infrastructure information that could provide nefarious elements with a road map for attacking the safe, secure, and reliable supply of water that the City provides to citizens of Morro Bay. Therefore, the public interest served by not making critical infrastructure information available to the public, clearly outweighs the public interest served by its disclosure."  Without the schematics, resident researchers have not been able to determine the cause of the large discrepancy between the observed water use and that shown in the water bills.  No explanation has been offered by the City.   

Restriction of Access for a Specific Individual 

A Morro Bay resident's report of a recent event appears to indicate that one's access to information may be related to one's perceived plans for using it.  According to the report, on May 12, 2010, a SLO County Grand Juror went to the Morro Bay City Hall to pick up a document.  He identified himself as a Grand Juror and specified the document he wanted.  He was subsequently told that it was not ready, and left.  As he was leaving City Hall, the resident was arriving to pay a bill.  As she entered, two staff members were having a conversation.  Its nature so concerned the resident that, after conducting her business, she went immediately to her car and wrote down all the details of what she had heard so that she could report them accurately.  

According to the report, the staff members evidently did not know that the person standing in front of them was acquainted with the Grand Juror, and continued their discussion.  Reportedly, one staff member was advising another of specific directions that staff were to follow with regard to the Grand Juror.  She told her colleague that the City Attorney has a strict policy regarding any request that is made by that particular Grand Juror, whether it is made as Grand Juror or as a member of the public.  She stated that no information can be provided until the City Attorney reviews the request, and that the City Attorney will decide what parts of the requested information, if any, the Grand Juror can have, and what parts he cannot have.  She further stated that nothing may be done for the Grand Juror without receiving the City Attorney's permission.   The staff member being advised asked if the Grand Juror had to pay for copies when conducting Grand Jury business, and was told, "yes." These details were documented by the resident in a formal statement that, according to the report, was provided to the Grand Juror and was submitted with an investigation request. 

Getting Questions About Public Records Answered 

Getting questions answered has also been challenging at times.  Attempts to ask questions of the custodians of City documents have sometimes been discouraged.  An example of the problem is this comment made by the City Attorney in an 8/19/2008 email, "In addition, the PRA does not require staff to answer emails about documents, only produce them.  So I can not guarantee you, there will be a response."  In another email sent on February 18, 2010 email, he stated,   "The Public Records Act requires the City to produce documents in its possession or control. It does not require the City to analyze or explain the documents." 

Another example is an incident that occurred in October, 2008.  I submitted a PRA to the City Attorney and after reviewing it,  he referred it to City employee Bonnie Johnson.  Ms. Johnson contacted me directly by email, stating, "Linda, Per your request attached is the information for the total number of units billed to City of Morro Bay Water customers. If you have any questions please contact me . . .  "  I responded with two questions, neither of which constituted a new PRA request. One was with regard to the status of some material I had not received. I stated,   "My Public Records Act request was for two sets of documents.  One is the material you have already sent me.  The second, which I have not received yet, was for billing documentation from the County for all State Water we have received for the months of August, 2007, through August, 2008, showing UNITS BILLED as well as DOLLAR COST." 

Immediately, on 10/9/2008, I received an email from the City Attorney stating, "Linda, Your email to Bonnie has been forwarded to my office. As we have discussed in the past, all PRA requests should be made to my office. The remaining documents you have requested in regard to billing for state water and other documents concerning water loss are being compiled and we will let you know when they are available for inspection."   Since the City Attorney had not been copied on my email to Ms. Johnson, I concluded that she had forwarded it to him, but do not know whether this was done at his instruction or because she simply preferred to have him address the questions. 

Room for Improvement  

What I think all this means is that Morro Bay has a ways to go to achieve transparency in government and to accept accountability for problems. Public officials need recognize that City government is there to serve residents, and is obligated to conduct its business in the most ethical, open, and honest manner.  They are obligated to spend our tax dollars as carefully and as wisely as possible and to accept responsibility when errors are made.  As I have told some of our elected officials, when the City adopts new ways of doing business that better serve the needs of residents and better manage their tax dollars, there will be little need for residents to monitor and research the activities of the City staff. 

In the meantime, officials should recognize the work of resident researchers as providing valuable information that will help them to better serve their customers, the residents of Morro Bay.  The relatively small cost of fulfilling PRA requests and answering questions can result in huge savings of our tax dollars as new ways of conducting City business are implemented to resolve the problems that residents have identified.  I would like to see all City officials adopt the viewpoint espoused by people like Noah Smukler and Betty Winholtz.  Residents can and should participate in local government to the maximum extent possible.   Government of the people, by the people, and for the people will never go out of style.