In “Burnett explains what went wrong with city’s PRA policy,’ By JASON BURNETT, Mayor, Carmel-by-the-Sea (The Carmel Pine Cone, November 1, 2013, 27A & 23A), Mayor Jason Burnett explained, as follows:
ON OCT. 10, the Carmel City Council reaffirmed “the city’s policy and practice that the Public Records Act be construed broadly in favor of public disclosure consistent with the law and the rights of our employees,” so it was disappointing to learn that a mere five days later the city’s outside law firm withheld information from The Carmel Pine Cone that should have been made public. I am sorry that this has happened and we are taking corrective action. That law firm will no longer do Public Records Act business for Carmel and we have taken other steps to ensure the policy direction of the City Council is properly implemented.
In mid-September the city received a request from the Carmel Pine Cone for certain recent emails. All emails that might have been responsive were forwarded to our outside law firm. We had the expectation they would redact (black out) any information we are not permitted to share (such as home addresses, medical information, social security numbers and the like) or that would do other serious harm to the public process. The law firm was to provide an explanation for any redacted information, and the remaining information was to be made public as soon as possible.
That was the last I thought about the issue until we received an email from Paul Miller early last week saying they had not received the information they had expected. We immediately reached out to City Attorney Don Freeman since the interpretation of the Public Records Act is a legal matter and Freeman is charged with managing and advising on all legal matters for the city. Unfortunately he was on travel so we could not meet before The Carmel Pine Cone went to press last week.
In summary, after editor Paul Miller filed a lawsuit against the City on October 8, 2013 for denial of Community Planning & Building Director Rob Mullane’s resume, the City Council met in closed session two days later on October 10, 2013 and settled the case to Paul Miller’s satisfaction and reaffirmed “the city’s policy and practice that the Public Records Act be construed broadly in favor of public disclosure consistent with the law and the rights of our employees.” Five days later, on October 15, 2013, Paul Miller received a letter from the City’s legal firm Liebert Cassidy Whitmore stating that a public records act request for emails between Carmel Residents Association President Barbara Livingston, City Administrator Jason Stilwell and Mayor Jason Burnett was denied. Attorney Heather R. Coffman stated the people who wrote and received the emails had a “privacy right” that outweighed the public’s right to see them. “Please note that personal identifying information contained in response to the PRA requests has been redacted in order to protect the privacy interests at issue. For example, correspondence of members of the public detailing their concerns as citizens have been redacted because the public interest in disclosure of this correspondence is clearly outweighed by the interest in nondisclosure to avoid a chilling effect on the public.” Coffman cited “several legal decisions” to support the redactions of approximately 75 emails dated between early July and the end of September.
Mayor Jason Burnett makes the assertion that the City is “taking corrective action.” “That law firm will no longer do Public Records Act business for Carmel and we have taken other steps to ensure the policy direction of the City Council is properly implemented.” However, the act of terminating Liebert Cassidy Whitmore’s contract for public records act requests, essentially blaming the City’s own choice of legal firm to fulfill public records act requests over numerous months, is not wholly credible because every letter received from Liebert Cassidy Whitmore in response to a public records act request submitted to the City included the paragraph “This firm represents the City of Carmel-by-the-Sea (City) and provides the following responses to your requests for information pursuant to the Public Records Act (PRA). These responses are sent on the authority of the City Clerk, Heidi Burch;” with a copy to Administrative Services Director Susan Paul or City Administrator Jason Stilwell.
In conclusion, City Administrator Jason Stilwell and Administrative Services Director Susan Paul were sent copies of every City’s response letter to entities making public record act requests by attorney Heather R. Coffman, Liebert Cassidy Whitmore, and could have intervened and made certain that “the city’s policy and practice that the Public Records Act be construed broadly in favor of public disclosure consistent with the law and the rights of our employees” was being implemented. Ergo, either City Administrator Jason Stilwell and Administrator Susan Paul are incompetent city employees or City Administrator Jason Stilwell and/or Administrative Services Director Susan Paul advised attorney Heather R. Coffman to construe broadly against public disclosure.
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