City defends lack of public disclosure

ENCINITAS — Attorneys representing the city of Encinitas in a Vista courtroom on May 20 defended its refusal to hand over a consultant’s report that addressed the state of local roads and necessary repairs.
Kevin Cummins, a local resident and frequent critic of City Hall, sued the city after it refused to disclose the public document. “The city routinely buries upsetting information by denying the release of public documents,” Cummins said after arguments were heard by Judge Timothy Casserly.
Cummins said the document in question was finalized in September 2010, but submitted to city staffers six months earlier. When he made a formal request for the consultant’s report submitted in March and for all related documents leading up to its acceptance by the Encinitas City Council, he was denied.
Attorney Dennis Winston argued that the city had no interest in keeping the document from the public and was in violation of the California Public Records Act. After litigating numerous cases with similar issues, Winston said the practice of keeping documents from the public is commonplace.
“It happens way too often,” he said. “Normally you would expect any local entity to comply with the public records act request, but that’s not always the case.”
But City Attorney Glenn Sabine opined that the draft of the document was not yet a public record. In fact, he said that public scrutiny during the draft phase of a document would interfere with the work product.
“Let the staff do its job,” he said.
But Cummins wasn’t convinced that was the issue.
“If they (the city) do eventually release a document it has been totally sanitized,” he said. “The city’s position is ‘the public shouldn’t be allowed to see how much their reports had to be manipulated.’”
In fact, other documents, such as environmental impact reports, are required to be released to the public in draft form and comments are solicited.
“Admittedly this is a public record,” Winston said, adding that unlike EIRs which are governed by special statutes that require a draft to be released to the public, this report was subject to a balancing test.
“If a draft of a document is not normally saved and the public interest of disclosure is not clearly outweighed by the public interest in keeping it confidential, then it should be made available,” he said.
Winston advocates disclosing most records with certain exceptions including employee evaluations, real estate negotiations and attorney-client correspondence.
“Governments work very hard for us, but I don’t subscribe to the city’s position that the public just gets in the way,” Winston said.
“What’s to be gleaned from releasing these draft documents as opposed to what the harm can be?” Sabine asked rhetorically in court. “What can be gleaned from those draft documents can be gleaned from the final document, more so because it’s accurate.”
Assistant City Attorney Greg Lusitana said releasing draft documents can create problems for staff.
“The city needs to be able to have a decision-making process free from second-guessing by public questioning of funding options,” Lusitana said. “Let them get to the process where they can prepare a draft that then gets submitted to council and then that’s when the public review process takes place.”
But the public is not a mere nuisance during the process of creating documents.
“It’s their money, their government and they should know what is going on,” Winston said.
Cummins was adamant that questions raised by the public were crucial to creating a transparent government and that failure to do so was harmful to the governing process.
“The irony is that the citizens pay more attention to the city trying to cover up bad news than what is in these reports,” he said. “These guys have to learn that citizens don’t like to hear about cover ups at city hall.”
“After an analysis of the city’s position,” concluded Judge Casserly,”it is unclear how the release of the resulting report would affect its decision making process, as the request was made only after the process was complete. Regarding the city’s concern regarding the burden of future requests should the petitioner’s request be granted, the Supreme Court has already declared that such concerns are without merit, as a case-by-case analysis is required when making determinations on such requests. 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.”

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  1. KM8392 says:

    It sounds like he has a good argument for it to be made public.
    http://sunshinereview.org/index.php/California_Public_Records_Act

  2. Document Watcher says:

    Because it makes no sense and has been made purposely confusing by the staff, the reporter missed a key point.
    The evidence is the report WAS finalized in March 2010, and the city denied access in the summer of 2010. When Calaware came to town, only then was the report released. There is no evidence that the city was "finalizing" the report. There is evidence that the report was final: the report WAS DATED March 2010 and they were paid for a final report as two examples.
    Now, if it weren’t complete? What decisions are staff making? Why shouldn’t the public be able to know what options were available? If they made good decisions they should be able to support the final product.
    Well, this is confusing too, because this document is a road condition report!!! What decisions need to be made?
    You can read about the history of this at:
    http://encinitastaxpayers.org/blog/index.php/2010/07/29/prying-open-government?blog=3

  3. Same Old Same Old says:

    The City does the same thing in many departments. A lot of the staff are an embarrassment to our taxpayers– as are Jim Bond and Jerome Stocks.

    Stocks and Bonds shower praise on all of the staff who make mistakes and participate in cover ups. One example is Cotton, when he wrote himself undeserved paychecks. We have this level at the City only because it makes them feel superior to have people as bad or worse than they are.

    Encinitas was not always this way!

    Good luck Gus. I hope that you can have a positive influence on this entrenched group.

  4. anonymous says:

    I like Sabine’s quote, "let the staff do its job."

    So is he blaming citizens for the level of ineptitude that we often see at City Hall? My theory is that they do a recruiting event and hire the worst applicant to fill open positions, so that they will "fit in" with the others who work there.

    I hope that Gus will be the exception and will model standards of honesty and hard work that have been lacking in recent years, so that there is at least an expectation of better standards.

  5. Veritas 2 says:

    I know this will be a shocker to many of you; but Phil Cotton didn’t write himself an extra check; the system did. I’m not defending the system, but Barth, Houlihan, Bond, Dalager and Stocks, every employee in the City received extra pay.
    When Houlihan leaked this embarrassment to the press, she convienantly forgot to mention this fact.
    Real leadership would have been for Houlihan to return her extra pay as an example for us all.

  6. to veritas says:

    Wow, offense is a good defense, no? The council is not on an annual salary. They get paid by meeting and a monthly compensation. Are you saying the council got more than 12 months of base compensation? What does this have to do with the city’s cover ups?

  7. anonymous says:

    Veritas 2,

    It was about more than the extra paycheck. Was I the only one who was disappointed that our hourly City Manager disappeared for 3 weeks and was paid over $10,000 for an unauthorised, self-selected vacation?

    Also, I believe that I had read in the Union Tribune that a staff member in accounting turned Cotton in.

    Hopefully we will not have to implant a chip into Gus to make him trackable before the Christmas holidays, like some suggested after Cotton’s paid disappearance.

  8. Donal says:

    It was a Councilwoman that turned the City Manager in to the U.T. Watch Dog.

  9. anonymous says:

    So how is that a bad thing? Isn’t it the duty of those who work there to report the appearance of unlawful activity? Whoever the council woman is, there are many in Encinitas who are grateful to her!

    If Cotton had been a hourly janitor instead of a City Manager, nobody, not even the Coucil majority, would have defended him. Is not showing up to work for weeks without first calling in considered acceptable employee behavior in the Encinitas Employee Handbook that none of us have been able to read?

  10. anonymous says:

    It seems that the judge has ruled in favor of Kevin and Encinitas citizens’ right to know and against Glenn Sabine and his attempt to encourage poor performance and cover up at City Hall.

    The light has been shone on the present standards of City employees. I invite City workers to use this case and the arrival of our new city manager as an opportunity to turn over a new leaf and start to take some pride in their work.

    After all of the credibility that has been lost, it is a long climb back to being meerly mediocre om the eyes of the citizens.

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