Three Ways California Governments Try To Avoid Transparency

Few politicians or government officials publicly oppose transparency in government. After all, transparency isn’t just about information; it’s a tangible acknowledgment that government officials work for citizens, not the other way around.

Still, there’s a big difference between mouthing support for transparency and actually fulfilling public records requests as required by California’s Public Records Act.

TransparentCalifornia.com, a public service website run by the California Policy Center and Nevada Policy Research Institute that contains over 3.4 million salary and pension records, has made over 2,000 public records requests in their efforts to make government compensation information easily and readily accessible to the public at large.

While most government agencies have complied, a few are employing some rather creative stalling techniques or actively refusing to comply.

Technique 1: Provide the requested records in an unusable format

Government Code § 6253.9(a) requires that agencies provide records in their “original, electronic format” when requested as such. Despite this, agencies like the Hacienda la Puente Unified School District, chose to print out and mail the records as their first response to Transparent California’s request for electronic records.

The Town of Apple Valley is trying the electronic variation of this tactic. Transparent California asks agencies to send records as an Excel file to expedite uploading the records. Apple Valley is currently only providing a PDF file that an employee printed out and then scanned through a copier, according to the file’s PDF properties. The file appears to have originally been in Excel format.

Thankfully, some cities, like Sierra Madre, eventually abandoned their ludicrous attempts to avoid transparency and have produced the requested records in the legally required format.

Technique 2: Use a court ruling declaring that records are public to refuse to provide records

The City of McFarland is currently refusing to provide employee names in conjunction with salary data, claiming that they are confidential. McFarland cites International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court as their justification for doing so.

What’s amazing is that in that case, the California Supreme Court held that employee names and salary data must be released in response to records requests. The plaintiff in that case only requested the names of only those who made over $100k, so these agencies are making the absurd claim that a ruling finding that public employees’ salary information are public records grants a privacy exemption to those making under $100k.

It could be worse. The Counties of Alpine, Modoc, and Trinity also are refusing to provide employees names, but haven’t even attempted to justify their refusal to comply with CPRA.

These agencies should consider what the Attorney General’s Office has noted: “The name of every public officer and employee, as well as the amount of his salary is a matter of public record.”

Technique 3: Stall them with kindness

The City of San Luis Obispo has perfected this. Transparent California requested payroll records on June 28th, 2013, and San Luis Obispo promptly responded indicating it received the request.
After a few clarifying emails, on August 15, the city emailed Transparent California that they were processing the request and would “forward the information to you shortly.” The records never came.

Unlike some government agencies where public employees are openly hostile to public records requesters, employees of San Luis Obispo have always been very courteous. They’ve responded promptly to Transparent California’s follow-up correspondence with apologizes for the delay and promises that the information is coming soon. While opacity with a smile is friendly, it still isn’t transparent.

In comparison, the neighboring City of Atascadero provided all of the requested records in less than two weeks time. Farther north, the City of St. Helena provided the requested records the very next day! Yet, San Luis Obispo hasn’t provided this information for the past 258 days and counting.

Government agencies that are currently stalling public record requests should join the thousands of government agencies that are complying with the law. Let the sun shine in.

Update: On March 20, 2014 after this piece was written but prior to its publication, the City of San Luis Obispo provided the records that were first requested on June 28, 2013.

About the Author:  Robert Fellner is a researcher at the Nevada Policy Research Institute (NPRI) and joined the Institute in December 2013. Robert is currently working on the largest privately funded state and local government payroll and pensions records project in California history, TransparentCalifornia, a joint venture of the California Public Policy Center and NPRI. Robert has lived in Las Vegas since 2005 when he moved to Nevada to become a professional poker player. Robert has had a remarkably successfully poker career including two top 10 World Series of Poker finishes. Additionally, his economic analysis on the minimum wage law won first place in a 2011 essay contest hosted by the George Mason University.

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