City Government’s Lack of a Meaningful Public Servant/Service Ethic

In a response to a public records act request, Britt Avrit, MMC, City Clerk, stated, as follows:

“Due to the Shelter in Place order, City offices are closed. Services not considered essential for the protection of public health and safety, such as responding to public records requests within the statutory time frames, are impacted. A response to your public records request will be provided as soon as possible upon the City's return to providing nonessential services. “

No better evidence exists for our City government’s lack of a meaningful public servant/service ethic.

Importantly, the First Amendment Coalition articulated in a Statement entitled “Coalition Urges Compliance With California Public Records Law Amid COVID-19 Crisis,” dated March 23, 2020, “In response to the COVID-19 pandemic, some government agencies in California have announced that they intend to stop responding to California Public Records Act requests until the crisis passes. There is no legal basis for this extraordinary step. The California Public Records Act, Gov. Code § 6250, et seq., remains the law of the land, and Article I, section 3(b)(1) of the California Constitution provides that “The people have a right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

The public’s right of access remains and is crucial in times of crisis. Just as the government’s power is at its apex during a crisis, the importance of the public’s right to know how their government is wielding that power could not be greater.

We recognize and understand the difficult choices that government agencies must make right now. Delayed responses to Public Records Act requests may be inevitable. But agencies have an obligation to take all reasonable measures to preserve and effectuate the rights of Californians to understand their government — rights which our Legislature has recognized are “fundamental” and “necessary” and our Supreme Court has held are “essential to the functioning of a democracy.” (See Gov. Code § 6250 [access to information is "a fundamental and necessary right of every person in this state"]; Int’l Fed’n of Prof’l & Tech. Eng’rs, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 328 [“Openness in government is essential to the functioning of a democracy.”].)

The coronavirus pandemic is not California’s first major crisis, and the Legislature has never authorized the suspension of the California Public Records Act. It enacted that law specifically “to safeguard the accountability of government to the public, for secrecy is antithetical to a democratic system of government of the people, by the people and for the people.” (See San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 771-72.) Moreover, the Governor’s recent emergency orders do not waive any of the California Public Records Act’s requirements.

While we acknowledge the extraordinary stresses that government agencies face right now, we urge all government agencies to comply with the California Public Records Act and the California Constitution and take all reasonable measures to continue to provide information to the public and the press during these exceptionally difficult times.

In declaring an “emergency in response to the COVID-19 crisis” and determining “that responding to public records requests within the statutory time frames are not essential services,” the City has not provided legal justification. To reiterate, with this action, the City has provided no better evidence for its lack of a meaningful public servant/service ethic.


REFERENCES:
FIRST AMENDMENT COALITION
Defending Free Speech & The Public’s Right To Know

Coalition Urges Compliance With California Public Records Law Amid COVID-19 Crisis
March 23, 2020

FAC Joins Nationwide Coalition Urging Transparency And Access In Response To COVID-19
March 20, 2020