Fine Urged for Hiding Public Data

Persuaded that bureaucrats have turned California’s open records law into a “paper tiger,” a state legislator has proposed a bill to fine government agencies $100 a day for thwarting citizen access to public documents.

For 30 years under the law, Californians have had a “fundamental and necessary right” to obtain information concerning the public business of state and local entities and their officials.

But Sen. Byron Sher (D-Stanford) told a news conference Tuesday that on a “persistent and continuing” basis, citizens, legislators, reporters and others are rebuffed in their efforts to obtain public records.

Sher, accompanied by representatives of the California Newspaper Publishers Assn. and the First Amendment Coalition, said the practice has become almost routine.

“It’s more usual than unusual,” he said.

He cited a report issued last summer by legislative staff who concluded that the open records law has been “turned into a paper tiger by state officials who know they face no penalty if they refuse to release public information.”

To give the law teeth, Sher last week introduced SB 48, which would give the state attorney general and the courts new powers to levy a fine of up to $100 a day against state and local agencies that delay, deny or otherwise thwart legitimate requests for information.

The current open records statute, while requiring agencies to make public records available promptly, also gives them 10 days to decide whether to comply. If a records request is denied, the agency must detail its reasons for doing so or inform the person making the request that the agency needs an extra 10 days to provide the information.

Reasons for not making the records available promptly can range from lack of staff or financial resources to the need to consult other departments for data.

Terry Francke, general counsel to the nonprofit First Amendment Coalition, which monitors open records and open meeting statutes, said he typically receives 20 complaints a month from people who could not get information they sought.

Francke cited a 5-month-old dispute between the city of Alhambra and citizen activist Elizabeth Mack as an example of the kind of struggle that can occur.

Mack, an unsuccessful candidate for the City Council last month, said in a telephone interview Tuesday that she suspects that some city employees are being paid twice for doing one job. She said her requests for a directory of all city employees and their job titles has been repeatedly rebuffed.

“Does that sound outrageous?” she asked. “What is so secret about an employee directory? My taxes pay their salaries.”

Mack, who operates a preschool center, said that Alhambra officials had “lost and forgot” her request for information and that she was told to resubmit the request.

“After a month and a half, I got a letter back from the city. It was a flow chart with people at the top and little boxes of various departments underneath. That isn’t what I asked for. I want an employee directory,” she said.

City Clerk Frances Moore said Mack has not been denied the information she sought. “We notified her that we are looking into it and will get back to her as soon as we are in a position of getting the information,” Moore said.

City Manager Julio Fuentes said Tuesday that no employees are being paid twice for doing one job. He said he may ask for a personal meeting with Mack to allay her suspicions.

In San Jose, Kim Adams, a parent of a school-age child, said she has been frustrated for three months in her efforts to examine the work records of a public relations consultant hired by the Berryesa Union School District.

Adams said that the consultant has been paid a $10,000 fee to do “community outreach” work but that officials have been unresponsive to her requests for documents that would specify the consultant’s work activities.

Adams said the district has sent her copies of billing invoices and payment records, but “my question was never answered in terms of what work product he had delivered. . . . It’s always stalling tactics.”

Under the Public Records Act, the vast majority of documents created by government agencies in California are public and must be accessible for inspection and copying upon request.

Exceptions include personnel and medical documents, reports on pending litigation, income tax returns, most law enforcement records, “deliberative” or policy-making processes of the governor and certain preliminary drafts and notes.