The basic axioms of California’s transparency laws seem simple — at least on paper.
The public records and legislative records act give us — at least on paper — clear access to records dealing with the people’s business. The same goes for the administrative functions of the state court system under its own rules.
Open meetings laws — the Brown and Bagley-Keene acts — provide that the people’s business is conducted in public.
But down here in the trenches, one is quick to realize the vastness between what these laws say — on paper — and the reality of how government agencies employ them. This is especially true with the Public Records Act.
It gives governments, in their subordinate roles, 10 days to search for records and issue a determination to the requesting party about what it will release.
“Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records … and shall promptly notify the person making the request of the determination and the reasons therefor.”
Essentially, they have 10 days to look for records and tell you what they have. In “unusual circumstances” an additional 14 days can be added to the determination period. That’s the max.
Yet public agencies routinely ignore these plain legislative instructions. BART’s notorious for this.
I filed a routine request with the agency on Aug. 15. Eleven days later I received a letter from the transportation district’s secretary, Ken Duron that did not contain a determination on the records I requested. It basically said, hey, got your request. Get back to you whenever.
My complaints to Duron and BART directors went unanswered.
Records — incomplete and scattershot — with no legal citations to explain why a portion of the records were censored arrived on Sept. 21. Only then — 38 days after the request — did BART inform me of its determination about what records were responsive.
BART’s not alone in its failings. UC Berkeley’s boilerplate response to public records requests states that the requestor can expect to hear something back in eight weeks. That’s more than double the amount of time a government can take under unusual circumstances to issue a determination.
This is ridiculous to the point that the university might as well be exempt from the law. The staff of UC President Janet Napolitano is just as bad. I’ve had a request pending there since Oct. 28. For the record that’s 333 days from the day I am writing this.
Others? Sure.
After never hearing back about a July 28 request to Daly City’s manager, Patricia Martel, a city lawyer told me on Sept. 22 the request had been “misplaced.”
When I pointed out a flaw in a response from Corte Madera, I got a one word answer from a now retired city manager: “Whatever.”
I don’t list these things to embarrass people, but to show the government at work. If something as essential as transparency is unimportant to the bureaucrats of a public agency, what else’s unimportant? What else to do they do poorly?
If BART can’t process a routine public records request, what else can’t it do? Why should voters approve billions of dollars of borrowing for the agency in November if it can’t do little things right?
If bureaucrats “misplace” a request for routine records, what else do they misplace?
If UC is able to take so long to provide public records that the reasons behind a request likely become moot before documents arrive, is it really a public institution?
At some point, teeth needed to be hammered into the law. In San Francisco, activists are attempting to force a public vote to reform the city’s Sunshine Ordinance to include fines for public officials who are found to have willfully violated the ordinance or other transparency laws.
Halleluiah.
I say that because the skeptical reporter in me is far beyond thinking that bad transparency responses are benign mistakes. We all know that little — even on paper — is as simple as it seems.
Thomas Peele’s an investigative reporter for the Bay Area News Group and teaches a class on public records at the UC Berkeley Graduate School of Journalism. Follow him at Twitter.com/thomas_peele.
