Sunday, May 15, 2016

UPDATED: Why is Eureka Being Squirrely About Handing over Public Records?

Posted By on Sun, May 15, 2016 at 8:08 PM

click to enlarge city_seal_eureka_california.png
Editor's Note: An update has been added at the end of this post.

Well, this is awkward.

You see, generally we at the Journal don’t talk much about our requests for documents made under the California Public Records Act. We just submit them and then write about the information we get back. That’s kind of how it’s supposed to work.

But a press release Tuesday from the city of Eureka turned that upside down, calling us out for threatening litigation and throwing out a scurrilous accusation that the Journal is somehow in bed with the American Civil Liberties Union and plaintiffs in a lawsuit against the city. The press release is strange, off base and, candidly, just bad government, especially when one considers its context. ( Eureka Press Release  )

Described by another media outlet as “kind of bizarre,” the release begins by offering a brief update on the federal lawsuit brought by 11 plaintiffs who allege the city violated their constitutional rights when evicting them from the PalCo Marsh on May 2. A federal judge has ordered the city to provide emergency shelter for the 11, and the city apparently wanted the public to know (through the press release) that six of the plaintiffs are currently staying in the converted shipping container project near Old Town and that the other five’s whereabouts are unknown as they haven’t taken the city up on its offer of shelter.

The release then notes the city had received an average of 31 “transient related calls” for police service per day and issued 18 illegal camping citations since the marsh was cleared on May 2. Apparently, the city wanted to make residents and the media aware that the clearing of the city’s single largest homeless encampment had the effect of dispersing homeless campers throughout the city.

But things take an abrupt turn from there. The release states that the city has received “several” public records requests seeking documents and communications “regarding the broad catch-phrase ‘homeless’ or ‘houseless’ from the ACLU and the media.” The city then notes its “concern” that these “entities” may be in cahoots with the PalCo Marsh plaintiffs, and requesting city documents with the aim of slipping them over to the plaintiffs to aid their federal lawsuit. Then, in one final curve, the press release states the following:

click to enlarge Eureka's May 10 press release
  • Eureka's May 10 press release
“The City has received one threat of litigation from the North Coast Journal. Thaddeus [sic] Greenson of the North Coast Journal has requested City Council and upper management communications since Feb. 1, 2015 from a broad category of records related to “homeless.” This request includes records related to the pending lawsuit and the city’s decision-making process with regard to the May 2 move-out. The City has and continues to spend a significant amount of time and resources to respond to these PRAs. The city is taking steps to respond to this threat of litigation and will vigorously defend any lawsuit that is filed.”

Well, seems like we’ve got some explaining to do. Let’s start with the accusation that we may be somehow conspiring with the PalCo Marsh plaintiffs to aid their case, which is 100 percent false and baseless. We have not spoken to any of the plaintiffs in the case about their lawsuit or about our records requests. Our end game in requesting documents from the city is a pretty standard one for a newspaper: We intend to read them and then, maybe, write about them.

But let’s back up for a moment. The California Public Records Act was signed into law back in 1968 by Gov. Ronald Reagan. The main thrust of the act was laid out in its preamble: “Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” The act requires state and local governments to make their documents and records available to members of the public upon request, save for some categories of records the Legislature felt wouldn’t be in the public’s best interest to disclose, things like documents related to police investigations, legal advice and the personal information of government employees. (After all, who would want to work for the government if it meant everyone had access to your Social Security number?)

Under the act, public agencies need to respond within 10 days to any request for documents, though they can extend that period by another two weeks in “unusual circumstances.” The agency must describe what records were found that were responsive to the request, and explain its reasons if it chooses not to turn any of them over. While the act is a crucial tool for newsrooms throughout the state, it also makes documents available to anyone, which is its central tenet. It enables anyone with questions to file a request (nifty templates are available online here). And the act is used widely and frequently. We regularly submit requests to government agencies, as do journalism students, news agencies and curious citizens throughout the county and the state.

Since 1968, dealing with records requests has simply been an inherent part of being a public agency.

Now, back to our requests. They weren’t accurately represented in the city’s press release. First of all, they were submitted not by yours truly (Journal news editor Thadeus Greenson) but by staff writer Linda Stansberry back on April 7. But that’s a pretty trivial error. It gets better.

The first request asked for all written correspondences between city department heads, the city attorney and the city manager from Feb. 1, 2015 through April 7, 2016 about “the Devil’s Playground, the Palco Marsh and homeless encampments.” The second sought all written correspondences to and from members of the Eureka City Council and the mayor from Jan. 1, 2016 through April 7, 2016 regarding “homelessness within city limits.” ( CPRA Request Council Members   CPRA Request Department Heads )

Why are we seeking these documents? It’s a fair question with a simple answer: We want to see what city department heads were saying to each other about the PalCo Marsh encampments from the time a personal injury lawsuit rendered those camps a massive liability for the city in February of 2015 through the city’s setting the May 2 eviction date. Additionally, we wanted a glimpse at what council members were saying to and hearing from their constituents as the issue bubbled to a head. If that’s nefarious, well, then, color us nefarious.
Eviction Day
Eviction Day Eviction Day Eviction Day Eviction Day Eviction Day Eviction Day Eviction Day Eviction Day

Eviction Day

Click to View 17 slides

On April 8, the day after we asked the city for the documents, City Attorney Cyndy Day-Wilson got back to us saying the department head request would “require an extensive search and review of city records” and advised it was invoking a provision of the records act allowing it to extend the reply deadline out to 24 days instead of the customary 10. (On April 19, we received a letter advising the same extension would apply to the second request, as well). Fair enough. ( Eureka's Time Extension, Department Heads Eureka's Time Extension, City Council )

On the 24th day, at 4:56 p.m. on May 2, four minutes prior to the city’s legal response deadline, City Attorney Cyndy Day-Wilson fired off letters refusing to turn over a single email or note. “The city has reviewed your records request; the records requested are nondisclosable,” Day-Wilson wrote, adding that she was invoking a pair of exemptions that protect documents related to pending litigation and attorney-client communications. ( Eureka's Response, Department Heads Eureka's Response, City Council )

This struck us as a bit far-fetched; in a broad stroke Day-Wilson said a combined 17 months of emails and correspondences, including some between constituents and council members, were all classified as attorney-client communications or pertained to pending litigation. So on May 6, I sent off a (polite, I think) email to Day-Wilson and City Manager Greg Sparks asking the city to reconsider, pointing out our belief that only documents specifically prepared for use in litigation are exempt from disclosure under the law and that there is no attorney-client privilege that protects emails between elected officials and members of the public.

We concluded: “For these reasons we ask that you reconsider your blanket rejection of our two records requests. If I do not hear back from you by 5 p.m. on May 9, we will seek a judicial remedy.” ( Journal's Request to Reconsider Denials )

So there’s our threat of litigation. And wouldn’t you know, at 5:06 p.m. on May 9 we received a long and somewhat cryptic letter from Day-Wilson explaining that the city disagrees with our interpretation of the exemptions of the CPRA and our interpretation of the city’s response. “The city is well within its rights to not disclose the requested documents,” she wrote, adding that because of unspecified similarities between our records requests and one filed by the American Civil Liberties Union back in February, “the City is suspicious of the motives that prompted Ms. Stansberry’s request.”

But Day-Wilson then quickly changed course to say “the city has reconsidered your request and has begun reviewing all of the correspondences that you requested. So far, the city has determined that it will disclose 72 pages.” ( City Response to Request to Reconsider )

  • Day-Wilson.
“Has begun?” At this point, you might be asking yourself, "Didn’t the city say it already reviewed those documents?" "Didn’t it determine them all to be 'nondisclosable,' as Day-Wilson phrased it?" "But now she’s saying that her office has just 'begun reviewing' them and has already determined 72 pages are disclosable?" Yes. Yes. And, yes.

But it gets better. On May 11, we sent an email to Day-Wilson’s legal assistant, Danielle Vickman (Day-Wilson has asked that we no longer contact her directly about this matter), to say that we’d like to get copies of those 72 pages and, if possible, we’d like them electronically (both to save paper and avoid the 10-cents-per-page copying fees). Day-Wilson wrote back to say that since the May 9 letter, the city “has located a significant amount of disclosable documents.” But the city said electronic records were too burdensome and asked that the Journal make a $150 deposit to pay for copies of all the records that are now deemed responsive to our request. ( Journal's Request for Electronic Copies City's Response to Electronic Copies Request )

To recap, on May 2 everything we asked for was deemed “nondisclosable.” Nine days later, there are so many records the city won’t begin copying them for us until we pre-pay for 1,500 pages of them. That about brings you up to speed. Thirty-five days after our initial request, we’re beginning to get our hands on some documents. Meanwhile, the city continues its review to determine, on second glance, what others — if any — the law might mandate be released. It’s a process that the city estimates will take another three to four weeks.

It’s important to make clear here that we haven’t filed any lawsuit against the city and our only “threat,” if the city wants to call it that, was stating that we disagreed with the Day-Wilson’s stance and, if necessary, would ask a judge to make sure the city was complying with state law (there would be no monetary award in any such lawsuit). And I think it’s equally important to say that we aren’t interested in wasting city employees’ time or gumming up government with a bunch of worthless requests. We do, however, feel our requests are reasonable, given the public interest in the issue.

Honestly, this whole process has been frustrating. We hoped to put the May 2 evictions into a sharper focus, hoped to offer some insight into the city’s year-long dilemma of what to do with the people in the PalCo Marsh. And we hoped to better understand how Eureka’s elected leaders navigated the months surrounding the ultimate decision to move forward with clearing the marsh. We’re confident we’ll still be able to do some or all of that, but it looks like it’s going to take longer than expected. We’ll keep you updated, seeing as the city thinks folks are suddenly interested in the sausage-making of journalism.

In the meantime, it seems appropriate to conclude with a passage from the California Public Records Act itself:

“The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist they may retain control over the instruments they have created.”

After the above editorial was published, the Journal obtained a copy of the ACLU’s February records request to the city of Eureka. Remember? It’s the one that was allegedly so similar to our request two months later that it made the city suspicious of our motives — so suspicious, in fact, the city would later put out that press release accusing the Journal of trying to funnel documents to the ACLU and plaintiffs in a federal lawsuit against the city.

You can find PDFs of both requests below and weigh in. Just how similar are these requests? Does the city have reason for suspicion? Did the San Francisco-based chapter of the ACLU pull some kind of Jedi mind trick to make us unwitting accomplices in their grand scheme? Judge for yourself.

Our records requests:
CPRA Request Council Members CPRA Request Department Heads The ACLU request filed in February:
ACLU request
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