Mayor Jason Burnett & the Council’s Policy of Interpreting ‘the California Public Records Act Broadly, In Favor of the Public’s Right to Observe the City’s Business’

The California Public Records Act (CA PRA)
"The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist they may retain control over the instruments they have created."
-- CA Public Records Act

ABSTRACT: Excerpts from the news article entitled “Little controversy in Livingston emails,” MARY SCHLEY, The Carmel Pine Cone, regarding Mayor Jason Burnett’s comments about the City’s legal consultant Liebert Cassidy Whitmore failing “to uphold the council’s promise to interpret the California Public Records Act broadly, in favor of the public’s right to observe the city’s business,” and thanking staff “for straightening out the situation, following city council policy, and releasing what our outside law firm should have released a month ago” are presented. And excerpts from attorney NEIL SHAPIRO’S COMMENTARY City’s tab for handling PRA requests doesn’t add up and COMMENTARY City’s secrecy gets worse and worse are presented. Since attorney Heather Coffman, Liebert Cassidy Whitmore, is “no longer” working on the City’s public record act requests as Mayor Jason Burnett stated because Liebert Cassidy Whitmore “failed to uphold the council’s promise to interpret the California Public Records Act broadly, in favor of the public’s right to observe the city’s business,” then why did Neil Shapiro, two months after his public records act request, receive “not a single record” he had requested and furthermore, why has City Administrator Jason Stilwell hired another law firm, namely STRADLING YOCCA CARLSON & RAUTH, for the purpose of apparently “looking for ways to try thwart your right to view the workings of your own government?”

THE CONTENTS of dozens of emails which the City of Carmel fought to hide — but which were released to The Pine Cone Tuesday after the attorney who heavily redacted earlier versions was taken off the job — revealed the concerns of a woman heavily involved in the operation and preservation of her city, but little else.

The correspondence between former councilwoman and Carmel Residents Association President Barbara Livingston and city administrator Jason Stilwell, as well as with Mayor Jason Burnett, focused on code enforcement, planning issues, recommendations of candidates to serve on city boards, and some of the chatter around town regarding recent hires and investigations into longtime employees, leaving wonder about why they had been hidden in the first place.
Different attorney, different results

The change of heart came after Burnett said last week that attorney Heather Coffman, who works for the San Francisco law firm of Liebert Cassidy Whitmore, had failed to uphold the council’s promise to interpret the California Public Records Act broadly, in favor of the public’s right to observe the city’s business. Stilwell began submitting all requests for public documents to Coffman several months ago, instead of running them past city attorney Don Freeman. The result was that much was hidden — including all sorts of things that shouldn’t have been.

“Thank you to our staff for straightening out the situation, following city council policy, and releasing what our outside law firm should have released a month ago,” Burnett told The Pine Cone Thursday. “It is pretty clear why this law firm will no longer work on our public record requests.”

Source: Little controversy in Livingston emails By MARY SCHLEY Published: Nov. 8, 2013

The report includes a request I made for “access to and copies of documents sufficient to identify by date, payee and amount all attorney’s fees and related charges paid during the past ten years by the city … for litigation relating to the Flanders Mansion.”

The report claims that responding to my request consumed 13.4 hours and $5,292, again at the ubiquitous hourly rate of $395. I wonder how much of that time was spent by Mr. Stilwell in preparing his lengthy missives to me in which, among other things, he acknowledged that the city took well more than the 10 days the law allows — “the delay encountered with respect to this matter is an anomaly and is not a representation of the city’s commitment to conduct the people’s business in the most responsible, professional and transparent manner possible” — and represented that “the city has determined that [the] request seeks disclosable public records and shall make the records promptly available.”

In the end, and nearly two months after my request, I received not a single record I had requested, but only a computer printout of the payments to attorneys. 13.4 hours at $395 per hour for a computer printout that runs 12 pages?

Source: City's tab for handling PRA requests doesn't add up
COMMENTARY by NEIL SHAPIRO
January 24, 2014 The Carmel Pine Cone 25A

On behalf of a small cadre of citizens who believe in open government I requested that he provide the following documents: “(1) All records reviewed or created in the preparation of the Public Records Request Log 2013 provided to the Carmel City Council earlier this month; and (2) Records sufficient to identify the individuals involved in the preparation of the Public Records Request Log 2013, and the amount of time spent by each.”

So what was produced? Two documents: (1) A copy of the report referenced in the request and already public, and (2) A 10-page invoice from the law firm of Stradling Yocca Carlson & Rauth with virtually everything redacted. The only information visible was the date of the invoice (dates in November 2013 on which some undefined work apparently was performed), and the time spent and charges imposed for that mysterious work. The amount of the invoice for that single month, in case you are wondering, was $23,192.50.

When I threatened litigation to enforce the law, Stilwell provided the same invoice, but with slightly fewer redactions. We now know that the Stradling “team” had lots of conferences, sent each other “multiple emails” and “strategized,” presumably about how to avoid making public records public.

While reasonable minds may differ on whether some specific, limited governmental records may be withheld, it is beyond contravention that the vast majority of governmental records must be made public on request. The rule is disclosure, and only the occasional exception warrants non-disclosure. Most requests can be handled by city staff, and there is always City Attorney Don Freeman — already on a monthly retainer and with lots of Public Records Act experience — for most of the rest.

Only an occasional request can properly merit referral to outside lawyers, much less a “team.” Yet at Stilwell’s direction the city apparently ran up more than $23,000 in fees for a single month for what appears to be looking for ways to try thwart your right to view the workings of your own government. Those are your tax dollars supporting that effort. And if anyone sues and vindicates the right to access, you get to pay the lawyers on both sides. If you don’t want your money spent hiding your government’s conduct from you, you need to say so. And loudly.

Source: City's secrecy gets worse and worse
COMMENTARY by NEIL SHAPIRO
February 14, 2014 The Carmel Pine Cone 21A