Sun shines on government in Modesto, but not in Merced

Badlands Journal appreciates the Modesto Bee’s emphasis this week on the second annual, national Sunshine Week. We note, however, that it remains overcast in Merced. There is no excuse for this except the “independence” of the local Sun-Star publisher. The Sun-Star is a McClatchy paper, like the Modesto Bee. However, the Sun-Star appears as a matter of editorial policy to be against protecting and promoting open government for all citizens. That’s a rotten definition of journalistic independence, in the opinion of Badlands Journal.

Bill Hatch
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Secrecy on the March:
Making the Case for Sunshine Week

… Sunshine Week is not about journalists, it's not about partisan politics, it's about the public and the importance of protecting and promoting open government. Sunshine Week is not about protecting journalists' rights, it's about the right of all citizens to know what their government is doing—and why. -- http://www.sunshineweek.org/
------------------------------------

Message from Bee Editor and Senior Vice President Mark S. Vasché

Modesto Bee -- March 12, 2006
http://www.modbee.com/local/story/11923683p-12690450c.html

Dear Readers,

Welcome to Sunshine Week.

Over the course of the week, we’ll be shining a light on open government, with stories, editorials and columns designed to help you understand the importance of public access to government proceedings and records – and the growing attempts to limit that access.

We’ll help you understand that open government is an issue that affects every citizen, not just journalists.

We’ll help you understand your rights as a citizen, show you how to file a public records request and tell you what to do if your request is denied.

We’ll tell you what happened when we went out and asked 21 local agencies for public documents. We’ll tell you what happened when a First Amendment group made the same request of 31 state agencies. And, we’ll tell you what’s happening in Washington, D.C., and across the country.

We’re not alone in doing this. Newspapers, magazines, broadcast outlets and Web sites throughout the nation are joining The Bee in observing Sunshine Week.

Why? Because a government that ceases to be open and accessible to its citizens ceases to be a government of, by and for the people. And, we never want that to happen.

Mark S. Vasché

Editor and Senior Vice President
-----------------------

Paper Trails

Modesto Bee -- March 12, 2006
http://www.modbee.com/local/story/11923683p-12690451c.html

Here are some records to which people have access:

Jail logs -- You can see who's in jail, their ages, hometowns and the offenses for which they were arrested.

Elected officials' statements of financial interest -- Called Form 700, the California Fair Political Practices Commission says each elected and appointed official and certain public employees must file one annually. City hall is required to keep them on file.

Property records -- You can learn the assessed value of the homes in your neighborhood, see who has owned them and what they paid and sold them for, find out zoning and get other information at the county assessor's office.

Restaurant inspection reports -- The county health department issues reports on every restaurant in town. Find out if your favorite restaurant meets cleanliness standards.

Bankruptcies and divorces, civil and criminal court files -- Most court cases in California are open to the public, though judges can choose portions to be sealed, such as search warrants. The only real exception is juvenile court -- all records are closed.

Employment contracts of public officials -- You can compare your city manager's contract with those in similar towns, or find out how your school district superintendent's salary and benefits stack up against others.

Voter registration -- An Internet database allows people to look up the names, addresses and phone numbers of all registered voters (though some people choose not to have their numbers listed).

The city budget -- You can see how your city spends the money that comes in. You can even look at the monthly bills.

Development agreements -- These allow someone to see whether developers follow through on their commitments.

City or county staff reports -- What proposals do staffers generate and how do they justify the costs?
-----------------------------------

Tips on making a request for a public document

Modesto Bee -- March 12, 2006
http://www.modbee.com/local/story/11923683p-12690452c.html

Preparing your request

1. Identify the record you want. Knowing the specific document type – a birth certificate or a building permit, for example – will make it easier to direct your request.

2. Identify the agency that has it. Government operates at several levels, so be sure to ask the county for county records, the city for city records, and so forth.

3. Check the agency's Web site to see if the information is available online. More and more, government agencies are posting documents online, so Web sites are worth a look.

4. Find out when the agency is open and its location. You'll save a lot of time and
frustration by knowing the hours of operation.

5. Plan your visit. Expect delays. Go early enough in the morning or afternoon so clerks have time to fulfill your request before lunch or closing time. Park where you won't have to worry about feeding a meter. If you plan to photocopy documents, make sure you have enough money to cover the cost.

At the agency

1. You do not have to prove or even state a "need to know" to justify access.

2. You don't need to explain why you want the record.

3. Your request need not be in writing.

4. You don't need to identify yourself, with a few exceptions. The law requires

identification only when you seek information about pesticides or the addresses of people arrested or crime victims.

5. You have the right to inspect records, but the agency need not compile lists or write reports. For instance, the county assessor's office could produce records of home sales on your block but would not be required to compute the median sales prices or otherwise analyze the data for you.

6. You may be charged a fee for copying records, but not for looking at them.

Overcoming obstacles

1. The agency is obligated to do its best to help you find what you want. Your request should be reasonably clear, but if you need help describing exactly what you need, don't be afraid to ask for help.

2. You should expect prompt access to the records. Delay is allowed only to resolve good-faith doubts on whether all or part of a record is accessible by the public.

3. If there is a dispute over whether a record is open to inspection, the agency has 10 days in which to produce it or provide a written reason for denial. That 10-day delay applies only when there is a dispute over whether the document is exempt from inspection. Otherwise, the document must be produced promptly – which generally should be the day you ask.

4. Occasionally, documents may not be immediately available. For example, old records may be stored at a different location. If you'd like, you may leave your name and contact information so the agency can alert you when the record is ready. But you do not have to identify yourself and always have the option of returning to the agency later.

5. If the agency declines your request, it must justify doing so by citing the law, either a statute or a case interpreting a statute. Write down that information or ask the clerk to do so for you. And get the name of the person who told you.

6. If your request is denied, you have the right to appeal. You may send a letter of appeal, or go to Superior Court. For a sample appeal letter, go to www.modbee.com/sunshine. If you go to court and a judge rules that the agency improperly denied you access, you may be able to recover court and attorney fees.
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Sample letter: how to appeal if your public record request has been denied
http://www.modbee.com/local/story/11923683p-12690453c.html
Last Updated: March 12, 2006, 05:34:56 AM PST

Date
Name and Title (of the official with custody of the records) Name of Agency Address

RE: Public Records Act Request

Dear ________________,

Pursuant to my rights under the California Public Records Act (Government Code Section 6250 et seq.) and the California Constitution, as amended by passage of Prop 59 on November 3, 2004, I am writing to request a copy of the following records, which I understand to be in the possession of your agency:

(Describe the record(s) as precisely as possible, including the designation of any forms or
reports with titles, the date or dates if relevant, the author and addressee if the item is a letter or memo, etc. If the record is referred to in another document or published report and it will help to attach a copy of that reference, do so.)

I ask for a determination on this request within 10 days of your receipt of it, and an even earlier reply if you can make that determination without having to review the record(s) in question.

(Use the following if applicable:)

I would not ordinarily trouble you with this written request, but when I first made it informally I was told by __________________ that your agency considers the information to be exempt from disclosure because ________________________________. I respectfully suggest that this position, if I understand it correctly, is wrong. It is wrong because

___________________________________________________________________________.

If you determine that any or all or the information is exempt from disclosure, I ask that you reconsider that determination in view of Prop 59, which has amended the state Constitution to require that all exemptions be "narrowly construed." Prop 59 may modify or overturn authorities on which you have relied in the past.

If you nonetheless determine that the requested records are subject to a still-valid exemption, I would further request that: (1) you exercise your discretion to disclose some or all of the records notwithstanding the exemption; and (2) that, with respect to records containing both exempt and non-exempt content, you redact the exempt content and disclose the rest.

Finally, should you deny part or all of this request, you are required to provide a written response describing the legal authority or authorities on which you rely. Please also address the question whether Prop 59 requires disclosure even though authorities predating Prop 59 may appear to support your exemption claim.

If I can provide any clarification that will help expedite your attention to this request, please contact me at (provide phone or fax number, pager number, etc.). I ask that you notify me of any duplication costs exceeding $xx so that I may decide which records I want copied.

(Use the following as applicable:)

I am sending a copy of this letter to your legal advisor to help encourage a speedy determination, and I would likewise be happy to discuss my request with (him/her) at any time.

Thank you for your time and attention to this matter.

Sincerely,
---------------------------------

Merced woman guards public projects process
Lawsuits force the county, UC to toe the legal line

By ADAM ASHTON
BEE STAFF WRITER
Modesto Bee -- March 13, 2006
http://www.modbee.com/local/story/11926478p-12693374c.html

For some in Merced County, Lydia Miller's name prompts the same reaction: Why is she suing me now?

Miller, the county's foremost environmentalist, positions herself at the front of often impassioned debates on the spread of subdivisions and the footprint of the University of California at Merced.

She crafts her arguments using the state's Public Records Act to ensure local governments adhere to laws protecting the environment.

"Public process is the only tool in ensuring integrity of a project," said Miller, 48, who leads the San Joaquin Raptor/Wildlife Rescue Center. "When the process is compromised, then the project is compromised. We see very few projects that follow good process."

One of the biggest of 19 lawsuits Miller's group has filed against local agencies forced Merced County to turn over thousands of pages of documents regarding its interactions with the University of California before the system placed its newest campus there.

Miller believed the county was treating the campus as if it were a done deal and speeding through the approval process.

That case, which ended in 2002 with a judge's order to open the records, provided the groundwork for a lawsuit Miller filed in late 2004 seeking to halt plans on an 11,600-home community that would border the campus.

Her opponent in the three-year push to open the county's UC records was Greg Wellman, the county's former chief executive who now works as Atwater's city manager.

He said Miller had a right to most of the information she requested, even if it gave him headaches at the time.

"I think a large amount of what she's asking for is just a reflection of our democratic process," he said. "I might personally feel some of the issues raised are not consequential, but those are personal feelings. She has a right to public information — pure and simple."

Back then, though, Wellman said handing over some of the information felt as if it were inviting a costly lawsuit.

"You don't want to give up your defense strategy resulting in a higher award or any other such thing," he said.

Bruce Owdom, Miller's lawyer on the open records lawsuit, said agencies sometimes are too quick to deny a request like hers, giving an impression that a "culture of secrecy" prevails in their offices.

"They sometimes have an attitude like it's our domain here and the public doesn't have a right to these things," he said.

Miller says that attitude prevails in many government offices. She said the county should start keeping running files on controversial projects so people could drop by and check out a proposal's progress.

Merced County Supervisor Jerry O'Banion said that recommendation might run afoul of privacy protections for some applicants.

He also said the county shouldn't hand over information while it's being sued unless it's ordered to do so. The Public Records Act has an exemption for documents under litigation.

"There's client-privileged information that may help in regards to giving guidance to a project that shouldn't be part of a public document that anyone could see," he said.

Nonetheless, he said, the public should be able to see all the information that leads to supervisors' decisions.

Miller says the information her group obtains helps it ensure agencies follow through on mitigation plans, and support projects with sufficient resources.

Her group recently filed a public records request with Livingston and Merced County seeking information about plans for a sewer line that would make it easier for a developer to build a subdivision outside the city limit.

The City Council approved Ranchwood Homes' pitch to lay the sewer line in late 2004, but Miller argues the county would have had to sign off on it because it's in unincorporated land. She's waiting for the documents.

"We participate in the process," she said. "We can't sue on emotion; the only thing we can sue on is to make sure the process was adhered to rightly."
---------------------------

Judge rules against county
Merced Sun-Star – July 23, 2002
http://www.mercedsun-star.com/news/281651491740333.shtml

That was the good news. The bad news came five months later, when Merced County Superior Court Judge William Ivey ruled on attorney’s fees and costs. Attorney for the San Joaquin Raptor/Wildlife Rescue Center, Bruce Owdom, spent $42,000 on the case. Judge Ivey, forced to rule in favor of the Center on the merits of the case, slammed the plaintiff and its attorney on costs and fees to which they were entitled, as if to say to the Merced public and the bar: We may give the case, but you will not get costs and fees in Merced County.

And that has been largely true.
--------------------------

Records suit costs county $22,000
Court orders reimbursement for group’s court costs
By Cheri Carlson
Merced Sun-Star – Nov. 25, 2002

“Everybody thinks that we make money from the lawsuit. We don’t. – Lydia Miller, San Joaquin Raptor Rescue Center

Two local environmental groups that successfully sued Merced County earlier this year have won more than their right to view public records. In fact, they won nearly $22,000.

Superior Court Judge William T. Ivey on Friday awarded the groups their court costs, which must be paid for by the county.

Neither of the organizations – the San Joaquin Raptor Rescue Center and Protect Our Water – nor the individuals involved in the suit – Lydia Miller and Steve Burke – will actually see the money. It will go straight to their attorney, Bruce Owdom.

Owdom said Friday that when he took the public records case it was on a full contingency basis, which means if they lost, his firm wouldn’t get paid.

But they won, and now Merced County – and taxpayers – must foot the bill.

Not the entire bill, however.

Owdom said he was disappointed that the court decided to award only about half the amount he had requested.

He had sought about $42,000 in fees, but the judged awarded $21,796 instead, stating that the issues involved were not complex. He added that the $42,000 figure was based on the 222 hours he said his firm worked on the case.

Miller, Burke and their organizations filed a lawsuit in May claiming the county had repeatedly ignored or denied requests for information related to the University of California, Merced.

Mille said at the time that the information the groups had requested was “a pretty substantial file” of information that they felt the community needed to review, and the county had said, “No, we’re not giving it to you.”

The county argued that some of the requests were denied because the documents had already been provided. Other requests, according to the county, were vague and the requesting parties couldn’t clarify them.

In June, Ivey ruled in favor of the environmental groups and ordered the county to respond to the requests and to produce any of the public records that the county may have.

Owdon said Friday that since Ivey issued that order, the county has complied and produced more than 100 separately identified documents that hadn’t previously been made available to his clients.

Awarding court costs is necessary, according to Owdom, so public interest groups can find lawyers who’ll take these types of cases.

“Attorneys are only willing to take these cases if they have some assurance of getting fees awarded,” he said. “Nonprofit (groups) can’t afford to pay attorneys’ fees.”

Dennis Myers, the county’s attorney, said Friday that the judge’s order for the county to pay the environmental groups’ court costs adhered to state law.

Court costs and reasonable attorney fees are awarded to the plaintiff if they prevail in litigation regarding public record compliance, according to California code. The fees are paid by the public agency.

The code also states that if the court finds that the plaintiff’s case “is clearly frivolous,” it should award court costs and reasonable attorney fees to the public agency.

According to Myers, which account within the county’s funds will provide the money has not been decided since more than one department was involved.

Miller said Friday that she and Burke took their case to court “on behalf of the public,” and one of the benefits is that the court awarded them their attorney’s fees.

“Everybody thinks that we make money from the lawsuit,” she said. “We don’t.”
------------------------------

Central Valley Shines
With a few exceptions, open records provided in informal Bee survey

By ADAM ASHTON
BEE STAFF WRITER
Modesto Bee -- March 13, 2006
http://www.modbee.com/local/story/11926477p-12693365c.html

… Merced County, which charged 10 cents for copies of financial disclosure forms, charged the highest fee in the area for copies of other documents. It wanted 50 cents apace, a sum it set in 1990 to recoup some processing costs.

Three agencies — Livingston's building department, Manteca's building department and Tuolumne County's community development department — wanted to charge research fees for requests they deemed burdensome.

Bee representatives did not pay those fees; they reduced their requests from broad attempts to gain several months' worth of inspections to queries for a handful of specific documents.

Outside records firm a wrinkle

The Public Records Act says agencies cannot charge fees for researching or processing, unless the agency has to create a document to meet the request.

Nathan Barankin, spokesman for the state Attorney General's office, said that under the act, an agency may charge a retrieval or research fee for staff time on nonelectronic documents only if the public entity contracts with a private company to keep the records. The fees come through the company's bill.

Livingston's building department is run by a private company and could meet that exception.

City Manager Richard Warne said the department would charge extra fees only for requests that take several hours of staff time.

Its research fee was $46 an hour, city Building Official Rex Wyatt told a reporter.

"If it's a document off the shelf, we just give it to people. If it involves several hours of research, we might charge, but we haven't run into that problem," Warne said …

Bruce Owdom, a Fresno attorney who has worked for The Fresno Bee, said the amount of work that could go into satisfying a public records request is not a sufficient excuse not to comply with the law, or to charge fees beyond what the Public Records Act allows.

"They might say some other department has those records and we don't have those records. Or it would be too difficult to compile," he said. "My recollection is that there's not an exception to the Public Records Act for that type of situation."

Peter Scheer, executive director of the California First Amendment Coalition, said research fees violate the Public Records Act.

"In general, you can't be charged for the time, the effort or the money of conducting a search that responds to an individual's request — not for the search time, not for the consultation with lawyers, not for any discussions about the request.

"None of that represents the cost that may be passed on to the requester," Scheer said.
---------------------------

Notes:

3-12-06
Modesto Bee
Now open to the public...Lorena Anderson
http://www.modbee.com/local/story/11923683p-12690527c.html
Sunshine Week...Your right to know. Anyone can request public records any time, without providing a reason or even identification, and it is up to the government to explain why a document can't be released.Assemblyman Bill Bagley, who represented Marin and Sonoma counties from 1961 to 1974 and wrote the California Public Records Act, said he intended the government to operate in an "atmosphere of openness." ...agencies must prove that withholding a document has more public benefit than releasing it; nothing in the act is to be construed as preventing an agency from releasing records.

Message from Bee Editor and Senior Vice President Mark S. Vasche
http://www.modbee.com/local/story/11923683p-12690450c.html
Over the course of the week, we’ll be shining a light on open government, with stories, editorials and columns designed to help you understand the importance of public access to government proceedings and records – and the growing attempts to limit that access. Why? Because a government that ceases to be open and accessible to its citizens ceases to be a government of, by and for the people.

Government watchdog follows the money trail...Adam Ashton
http://www.modbee.com/local/story/11923683p-12690518c.html
Documents let him verify what officials are saying

Paper Trails...
http://www.modbee.com/local/story/11923683p-12690451c.html
Here are some records to which people have access

Tips on making a request for a public document...
http://www.modbee.com/local/story/11923683p-12690452c.html
Preparing your request... At the agency... Overcoming obstacles...
1. You do not have to prove or even state a "need to know" to justify access.
2. You don't need to explain why you want the record.
3. Your request need not be in writing.
4. You don't need to identify yourself, with a few exceptions. The law requires identification only when you seek information about pesticides or the addresses of people arrested or crime victims.
5. You have the right to inspect records, but the agency need not compile lists or write reports. For instance, the county assessor's office could produce records of home sales on your block but would not be required to compute the median sales prices or otherwise analyze the data for you.
6. You may be charged a fee for copying records, but not for looking at them.

Sample letter: how to appeal if your public record request has been denied...
http://www.modbee.com/local/story/11923683p-12690453c.html

3-13-06
Modesto Bee
Merced woman guards public projects process...Adam Ashton
http://www.modbee.com/local/story/11926478p-12693374c.html
For some in Merced County, Lydia Miller's name prompts the same reaction: Why is she suing me now? Miller, the county's foremost environmentalist, positions herself at the front of often impassioned debates on the spread of subdivisions and the footprint of the University of California at Merced. She crafts her arguments using the state's Public Records Act to ensure local governments adhere to laws protecting the environment. "Public process is the only tool in ensuring integrity of a project," said Miller who leads the San Joaquin Raptor/Wildlife Rescue Center. "When the process is compromised, then the project is compromised. Greg Wellman, the county's former chief executive who now works as Atwater's city manager...Back then, though, handing over some of the information felt as if it were inviting a costly lawsuit. Merced County Supervisor Jerry O'Banion..."There's client-privileged information that may help in regards to giving guidance to a project that shouldn't be part of a public document that anyone could see,"...Nonetheless, he said, the public should be able to see all the information that leads to supervisors' decisions. "We participate in the process," Miller said. "We can't sue on emotion; the only thing we can sue on is to make sure the process was adhered to rightly."

Central Valley Shines...Adam Ashton
http://www.modbee.com/local/story/11926477p-12693365c.html
Bee survey-The Bee informally assessed compliance with open government laws at 17 cities and four counties over the past two weeks by visiting government offices and asking forbasic rec-ords — financial disclosure forms for officials,executive contracts, building permits and restaurant inspections. Most agencies, such as the cities of Modesto, Sonora and Ceres, had the information on hand and disclosed it immediately. Others, such as Riverbank, Turlock and Merced County, wanted written requests. Peter Scheer, executive director of the First Amendment Coalition, called the level of compliance documented by The Bee "unusual." Californians Aware, another open government advocacy group, is scheduled to release an audit Tuesday indicating that more than half of the state agencies it checked failed to comply with the Public Records Act. Bruce Owdom, a Fresno attorney who has worked for The Fresno Bee, said the amount of work that could go into satisfying a public records request is not a sufficient excuse not to comply with the law, or to charge fees beyond what the Public Records Act allows. Peter Scheer, executive director of the California First Amendment Coalition, said research fees violate the Public Records Act.