This is Sunshine Week, a celebration of democracy and the transparency that keeps it alive in this country — and you don’t just have to be a journalist to join the celebration. It’s for civic groups, government employees, and anyone who cares about maintaining our rights to access public information so that we can keep an eye on our government at all levels.
The California Public Records Act is one of those powerful “hammers” the public can use to find out what the government is up to. It’s part of the state constitution, and without it the inner workings of government would largely be hidden from the public’s view.
As written, it states that all records, except personal confidential information or ongoing investigations, are yours for the asking. But the constitutional amendment only details a long list of items a government agency can claim as a reason to not provide records. That means our Sunshine protections require ongoing vigilance.
City Attorney Mara Elliott warns that the city of San Diego’s current CPRA system is “inadequate and has led to frustration, criticism, and costly litigation.” And the problem is getting worse, she says.
Elliott has previously recommended upgrades to the system and just released a new report that reveals troubling trends and issues with the system for securing public records. Elliot is proposing a new, centralized “Office of Transparency” to handle requests.
San Diego journalist Arturo Castañares, publisher of news site La Prensa, says that he has experienced the problems with the system, noting that he is repeatedly denied records for what “should have been rightly provided.” He has been forced to take the city to court and wonders,, “Why do I have to sue to enforce the law?”
His publication has filed nearly a dozen lawsuits to “enforce our rights under the California Public Records Act,” he said, and has a perfect record — 11 suits and 11 wins.
Not every journalist has the option to sue, but Castañares believes in “government accountability through radical transparency, meaning we stand ready to sue, if necessary, to force disclosure when public agencies fail to follow the law and our state constitution.”
The threat of costly litigation is one of the conclusions found in a report recently completed by the city attorney’s office. Elliott’s findings will be presented at a March 20 meeting of the San Diego City Council Rules Committee. They support, she says, a recommendation to create a separate entity to process CPRA requests.
Just the number of requests is a growing problem, those number have grown exponentially. In 2020 alone, the report notes that there were 5,824 CPRA requests, and the latest information available — for the summer of 2021 — shows 4,355 requests. Ten years earlier, in 2011, the city handled 683 requests.
She says the city is often accused of lack of transparency and incompetence because “departments do not coordinate when a CPRA request implicates several City departments, which can lead to inconsistent Information Technology (IT) searches, redactions, and applications of exemptions. One department may respond with no records, another may indicate there are records, but they are exempt in whole or in part, while another may release the same records.”
The proposed office would “restructure the intake/response processes.” Currently the council districts and mayor handle responses to their offices and the administrative side of city government hands off requests to each department.
She also points out that the city employees who are responding do not have law degrees but “are expected to understand and interpret the public records act to protect the city from litigation.”
The city attorney’s research findings align with what many journalists have said about their experience in trying to access public records from city government. Following several interviews I conducted with journalists and attorneys experienced in open records work, I was asked to share my findings with the city attorney’s staff.
Attorney Jerry Flanagan of Consumer WatchDog gives the city a poor grade for its responsiveness to public records requests.
“They’re getting 50 percent, just like most cities in California,” he said. “Average in responses to public records is not being transparent, it’s a failing grade. They’re withholding records, but they don’t need to withhold those records. We waste so much time and energy and undermine our democracy by fighting.”
Attorney Tim Blood of Blood Hurst & O’Reardon says that how an agency responds to a request depends on who is providing the information. The responders, he says. often view the requester as the enemy, “which is really just absolutely the wrong way to view it,” he said.
“They’re not the enemy, they’re a citizen asking for what they are entitled to. If the mentality is that the requester isn’t really entitled to these documents, that’s the wrong attitude from the get-go.”
The city attorney’s report concurs with Blood. “The general attitude among City employees toward handling CPRA requests is negative. It can be a thankless, unrewarding, and often times overwhelming job. It is often seen as punishment,” she says.
Elliot adds it’s a “low priority duty” for employees who are also tasked with other jobs.
The legal director of the First Amendment Coalition, David Loy, says the perspective of those responding for San Diego is: “We are inundated with record requests, and we don’t have the staff time to process them quickly.”
He says the providing timely responses is “as critical a public service as every other public service — police, fire, water sewer — because transparency is the oxygen of accountability.”
Paul Krueger, a former longtime producer at NBC San Diego and now a neighborhood activist and volunteer, echoes the sentiments of many journalists frustrated by difficult access to city records.
“My experience with the city’s CPRA system has been uniformly disappointing and frustrating,” he said.
“It takes a very long time to get documents, and they seem to arrive in my inbox willy-nilly over the course of weeks, months, even years. I have pretty much given up on filing PRAs with the city and try to find the information elsewhere. I know that many journalists and neighborhood activists share my frustration.”
The comments from journalists and attorneys we interviewed concur with a key conclusion of Elliott’s report: “The biggest challenge/risk for the City is created by inconsistent responses among responding departments.” Different departments, she said, interpret exemptions to the CPRA differently.
“Innocent or inadvertent mistakes,” she said, make the City appear “incompetent or purposely avoiding transparency.”
She warns that failed responses “undermine the credibility of City leaders,” as well as “deteriorate public trust and confidence in the City.”