Glendale City Attorney Scott Howard sent a letter, written by Glendale Senior Assistant Attorney Lucy Varpetian and dated December 12, 2006, to Barry Allen of Vanguard regarding Vanguard's Public Records Requests. Here are Allen's responses to Howard and Varpetian:
Howard's Letter: Over the past year, you have made more than 270 public records requests to a number of City departments, including the Fire Department, the Police Department, Public Works and this office. Your requests make up over 80% of the overall requests the City has received from the general public, not limited to only those living in the City of Glendale. To date, in the month of December 2006 alone, you have made 32 requests, as compared to the 5 requests that the City has received from the general public. Beginning with documents relating to Form 700's for specific Council Members and Commissioners, your requests have subsequently expanded in scope, complexity and frequency to include, more recently, documents related to all permits wherein police staffing was requested. Many of your requests include numerous subparts that, together with related questions, easily push your total number of discrete requests to far greater numbers.
Allen's Response: The characterization that the quantity of Constitutionally guaranteed public record requests is limited is an indictment of a system that is ripe for fraud and corruption. It was because of the failure to provide public records that Proposition 59 was passed in 2005. Unfortunately the City Attorney has failed in its obligation to notify the public that the public is entitled to review public documents. The failure of the City of Glendale to timely post these documents on the city web site is also a travesty that forces those that represent the public to rely on the California Public Records Act. The City has a policy that all records requests go through the City Clerk’s Office with a copy to the City Attorney. Simple requests. That prior to the institution of this new policy, were channeled to Department heads or Public Information Officers (Ritch Wells) now go to the City Attorney. The City Attorney complains even though we follow his direction. In fact in one case the Transportation Department refused a record request on the basis that the reason for the request was not stated, something that is not required by the Statute. In another case the City was successfully sued for their failure to provide the documents on a timely basis, something that Vanguard, to this point has chosen not to do. As records are reviewed we often find that, like any investigation or litigation, more avenues are opened.
Howard's Letter: By now you are well aware that your requests have placed enormous burdens on the resources of this office as well as other City departments. We have responded to your requests diligently and courteously, and have devoted as many resources as could be made available to the tasks your requests have required: analysis of increasingly complex requests; consultation with persons who could assist in providing responses; searching for potentially responsive records; reviewing records when located; preparing written responses to your requests; and disseminating responsive records. In some instances, the City has been able to provide a complete response within the statutory 10-day period. In other instances, we have found it necessary to invoke a 14-day extension permitted under certain circumstances.
Allen's Response: The burdens placed on the City Attorney’s Office are self-imposed. More time is spent in redacting information than in providing it. Vanguard in its requests has always offered the City Attorney an opportunity to discuss the issue and subject matter. However the City Attorney has not returned calls from Vanguard to offer that assistance.
Howard's Letter: We must assume you are also aware that careful scrutiny and attention are required when locating and releasing public records, particularly where they involve legal matters and personal information of citizens, namely medical information generated from the Fire Department. No less serious than our legal obligation to release public information when requested is our legal obligation to avoid disclosing attorney-client privileged communications or personal (in many cases constitutionally-protected) information conveyed by private individuals communicating with the City.
Allen's Response: The City has chosen to take the path of selectively protecting privacy and rejecting the Constitutional guarantees of open and transparent government. Medical information has never been requested. However addresses of fire department runs has been refused even though that information is broadcast over the public radio frequencies under the jurisdiction of the Federal Communications Commission. Your refusal to release that information leads one to believe that the GFD run statistics are not valid.
Howard's Letter: The right to privacy is explicit in the California Constitution, and we take our duty to protect the privacy rights of individuals as seriously as our duties under the California Public Records Act. To respond to your requests, it is sometimes necessary to review each page of otherwise responsive records. A single example is your September 7, 2006 request for over three years of documents relating to requests for event policing services. The responsive materials included review of hundreds of files. Accordingly, it was necessary to carefully examine and painstakingly redact a number of printed pages by hand in order to prevent public disclosure of such private information as home addresses and telephone numbers.
Allen's Response: The information was relevant to the use and charges for police services by elected officials which information has resulted in complaints files with state agencies. Additionally those requests have resulted in the City establishing a policy relative to providing free services to elected officials. None of the results would have occurred without the Vanguard requests, review and reporting. Home addresses are public information from the Registrar of Voters and the telephone directories.
Howard's Letter: Glendale Letter: To date, we estimate that the City has reviewed thousands of records and provided documents in response to your requests numbering in the hundreds of pages. We additionally expect that your pending requests will add still more hundreds to that total. Moreover, we conservatively estimate that the time devoted to fulfilling your requests by city staff is more than 500 hours, at a cost to taxpayers of over $35,000. You are well aware, of course, that the California Government Code contains no provision to allow us to recover any of these expenses beyond a 10-cent per page charge if paper copies are made.
Allen's Response: The fact that you have kept records of the costs for complying with the law and keep no records of the cost of applying for awards and commendations shows your disdain for the California Constitution and the Bill of Rights. The 10-cent per page is not designed to recompense the use of tax dollars. In fact the cost of a sheet of paper is 1 cent. In one instance you provided records with a line of typing per page for over 400 pages when the request was to review the document. In anther instance you charged almost $400 for a document that you refused to put on official stationery or letterhead. Your office prior to this letter indicated under a public record request that you had no documents relating to the quantity or the cost of document requests. Shall the public consider the number quoted to be arbitrary? Or a falsehood?
Howard's Letter: We take our obligations under the California Public Records Act very seriously. But we also owe a duty to the more than 207,000 other residents of this City to carry out all of the governmental functions of our respective departments. We do not believe that the legislators and voters who adopted the California Public Records Act and subsequent Constitutional Amendment intended to enable one person or group to unreasonably commandeer such a significant share of City resources, for such an extended period, with no end in sight.
Allen's Response: Because of the fear of government by many of those 207,000 people, Vanguard acts as a clearinghouse for public record requests. Emphasis should be placed on open and transparent government – not one that has the public fearful of retaliation. As one developer said he was fearful that if he complained about the GFD his project could wait another 3 or 4 months before fire department approval. The City Attorney also weighed in on an Amicus to prevent the public from learning about how many of the over 2700 employees receive more that $100,000 a year in salary. Thirty five thousand dollars, according to staff in the management letter of 2004, is not much in the grand scheme of things,
Howard's Letter: Mindful of our obligations to all the residents of Glendale and the considerable time and resources we have already devoted to responding to your requests, this letter serves to notify you that the City Attorney's Office has advised other departments that they may limit the time they spend responding to your public records requests to a reasonable amount of time that permits them to perform their other duties. This office similarly intends to limit the time we spend responding to your public records requests as necessary to allow us to perform our other work.
Allen's Response: The time frame is set by law. Each request must be filled within 10 days unless there is a justification for an additional 14 days. We will be more closely monitoring the time limits
Howard's Letter: Additionally before we devote significant resources to responding to your new requests we will first complete our responses to your outstanding requests. Given the volume, scope and frequency of your requests, which show no signs of abating, this reasonable allocation of resources will inevitably result in missed deadlines. If you wish us to focus on a new request, then you should inform us that you wish us to suspend work on a prior request in order to address the new one.
Allen's Response: The law that was passed by the Legislature and placed in the Constitution by the voters of the State of California covers each request made. You have already chosen to pigeon hole documents that could result in litigation against the City.
Howard's Letter: We finally wish to express that we take these steps reluctantly and only after two to three years of unrelenting and burdensome requests. This City is committed to transparency and openness of government as evidenced from the information now available online expanded from previous years and the series of long range planning sessions geared toward community involvement.
Allen's Response: The online data is old and often inaccurate as reported to the City Manager. Additionally the Vanguard address changed in August and you refuse to properly address correspondence, which adds time to our request fulfillment. Your letter alone indicated an unwillingness to provide documents openly and forthrightedly. The signing on to an Amicus in support of hiding the payroll of employees from the public scrutiny is another display of your disdain of open government. Further the liberal use of permissive closed legislative sessions displays further contempt for the people and the process of open government.
Howard's Letter: We are profoundly saddened that what appears to be a vexatious abuse of the California Public Records Act has forced the assertion of a limiting principle; in this case, the doctrine of implied rule of reason, well established in California case law, which sets reasonable limits for responding to public records requests.
Allen's Response: Vanguard Response: The requests, covered by statute, are not vexatious and are not subject to the doctrine of implied rule of reason. They are covered by the Constitution voted upon by the electorate. Your statement indicates a further animus toward the public’s need to access records that are rightfully theirs.
Howard's Letter: We invite reasonableness in your future public records requests to enable us to complete our responses to those already outstanding. Further, we hope you will consider withdrawing or narrowing some of your prior public records requests to facilitate the City's ability to respond to your core requests, and we welcome your guidance in identifying priorities among your multiple requests already queued for response.
Allen's Response: A review to our record request letter further indicates our reasonableness as opposed to your vindictiveness against the public. We shall expect all requests to follow the time limits prescribed by the law. I encourage you to review our request form reprinted below.
To: The Glendale City Clerk
Dear Mr. Kassakhian:
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 inspection 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.
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.
You must provide assistance by helping to identify records and information relevant to the request and suggesting ways to overcome any practical basis for denying access.
Finally, should you deny part or this entire 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.
Records concerning litigation are exempt only until the claim is resolved or settled. Upon disposition all records including court records and those pre-dating the suit are public.
If I can provide any clarification that will help expedite your attention to this request, please contact me at the number above. I ask that you notify me of any duplication costs so that I may decide which records I want copied.
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 or his designee at any time.
Thank you for your time and attention to this matter.
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