Public records and open meetings laws are critical for journalists who cover local government agencies – and two areas in which journalists and government officials, or their attorneys, most frequently butt heads in terms of assuring the public’s right to know. Together, the California Public Records Act and the state’s open-meeting law, the Ralph M. Brown Act, represent California’s suite of “sunshine laws” that cover cities, counties, school districts, special districts and other public agencies.
And they are tools that have been employed by The Bee to pry information from public officials who, in some cases, are less than forthcoming about the inner workings of their public agencies.
The 12th annual Sunshine Week (March 12-18) is a time when news organizations put a spotlight on the public’s right to know and size up the state of government openness and access to public records.
The Bee has vigorously used the California Public Records Act to seek documents related to several major stories over the past year, including an ongoing federal investigation of no-bid construction contracts in the Fresno Unified School District; a Bee investigation of substandard rental housing conditions in Fresno; a deep dive into 12 years of concerns over discolored water and pipe corrosion in homes served by a surface water treatment plant in northeast Fresno; and reporting on conflict between Fresno County judges and the Board of Supervisors over the judges’ five-month suspension of the county’s probation chief last year.
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Both the California Public Records Act and the Brown Act offer strong declarations about the importance of agencies and officials to conduct the public’s business openly, rather than in the shadows. The preamble to the Public Records Act, for instance, states that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
And the Brown Act, named for the state assemblyman who authored the bill that became law in 1953, offers an even stronger statement.
“The people of this State do not yield their sovereignty to the agencies which serve them,” Brown wrote in the preamble to his law. “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 on remaining informed so that they may retain control over the instruments they have created.”
For nearly two years, The Bee has battled with the Fresno Unified School District on access to public records – mostly those pertaining to no-bid construction contracts that are currently under federal investigation.
On Dec. 1, 2015, The Bee requested five months’ worth of emails exchanged between Fresno Unified officials and Harris Construction – a firm named in the grand jury subpoena served to the district in 2015.
Fresno Unified attorneys responded to The Bee’s request, and twice delayed release of the emails, first invoking a 14-day extension, saying the request was “voluminous,” and then another 60-day extension, saying limited staff was available to respond to the request during the district’s holiday break.
The district ultimately released 350 emails on Feb. 29, 2016 in response to that request, but withheld an unknown amount, citing several exemptions including student privacy and pending litigation. The emails showed that the developer and district officials discussed no-bid projects long before the school board approved them, leading to concerns about the relationship between district administrators and Harris representatives.
In June 2016, Fresno Unified also denied a public records request that asked for legal bills the district had received from Harris Construction. Fresno Unified said legal costs were not subject to public disclosure because they pertained to pending litigation and because “public interest served by non-disclosure clearly outweighs the public interest served by disclosure.”
In September, Jon Bath, a member of the Fresno Teachers Association, voiced concerns about the district’s delay of records he requested under the California Public Records Act. According to emails, the response to Bath’s request about the district’s spending was delayed several times for reasons including “this busy time of year;” and a prioritization of requests that puts parent queries first.
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.
Ralph M. Brown Act, California’s open meeting law, Government Code Sections 54950 - 54963
Most recently, attorneys for Fresno Unified denied a public records request made by The Bee in January that asked for any emails sent by former superintendent Michael Hanson to school board trustees on Jan. 2.
The district said that while it had one email on record that day, it is not subject to public disclosure, pointing to exemptions for attorney-client communications and personnel issues. It was later revealed by the school board that in the Jan. 2 email, Hanson said he had not resigned – despite announcing in December he planned to step down at the end of the school year.
Sniffing out slumlords
Within weeks of news about the wretched conditions in which residents were living at central Fresno’s Summerset Village apartments, Bee reporters requested records from the city of Fresno for a range of issues related to the city’s anti-slumlord efforts: code-enforcement staffing levels; the code-enforcement file, including courtesy notices, photos and complaints received by the city for Summerset Village since the complex was built in 1965; the city’s list of buildings targeted for demolition, including when those structures were built and then they were demolished; and the number of code violations noted by the division for the 2014-15 fiscal year.
The Bee’s first records requests were submitted in December 2015; by mid-January 2016, city officials began providing access to the documents – in some cases allowing physical inspection of the records, and producing printouts of others. Because of the volume of information requested, the city invoked its right to extend the deadline for providing some of the records.
By February, the city had provided all of the requested records – thousands of pages of documents, including some files so large that they were produced on CDs instead of on paper.
The data, combined with weeks of interviews with inspectors, landlords, residents and tenant advocates, formed the basis for The Bee’s special investigative report, “Living in Misery,” as well as numerous follow-up reports as Fresno worked to strengthen its code-enforcement efforts, culminating last month in the approval by the Fresno City Council of a landmark program to conduct interior inspections of rental housing citywide to seek out and prevent substandard conditions for tenants.
Voluminous public records from the city and from the Drinking Water Division of the State Water Resources Control Board also provided the foundation for The Bee’s investigative report of a 12-year history of complaints over water discoloration related to operations of Fresno’s Northeast Surface Water Treatment Facility.
As The Bee sought to assess why it took a dozen years for Fresno leaders to realize the scope of the problems – rust-colored water as well as traces of lead in water samples tested last year from some homes – reporters made a series of Public Records Act requests last summer, asking for and receiving hundreds of pages of email correspondence between northeast Fresno residents and managers at the treatment plant, supervisors in the city’s water division and, in a few instances, City Council members and their staff assistants, as well as test results and other documentation from the state water board. The documents covered a period from 2004, when the treatment plant opened, to 2016, and dealt with complaints from residents about rust-colored water coming from their faucets.
Experts have concluded that dramatic chemical differences between groundwater – for decades the sole source of drinking water for the city – and surface water from the treatment plant disrupted layers of scale and rust that had built up over years inside galvanized pipes in residents’ homes. The trove of emails revealed that water managers either didn’t fully comprehend what they were dealing with, or failed to connect the dots as problems surfaced in 2004 and 2005 in multiple northeast Fresno neighborhoods receiving water from the treatment plant.
From the first scattered complaints in 2004 until early 2016, the number of email complaints to the city was small. Many affected residents thought the problem was isolated to their own homes. But one resident’s social media post in early 2016 asking if anyone else was having a problem with discolored water triggered a flood of more than 2,000 complaints to the city over the next few months, and sparked realization among neighbors and leaders at City Hall that they had a significant problem on their hands.
The emails among water managers showed that the problems associated with the new $32 million water plant, built to relieve strain on failing groundwater wells in northeast Fresno, were believed to be temporary and isolated. “This is not a widespread problem in northeast Fresno,” Lon Martin, then the city’s water system manager, wrote in a 2005 email to then-Fresno City Councilman Jerry Duncan. “We expect this to be resolved by the end of the week.”
It wasn’t. Experts hired by the city continue to test water and pipe samples in search of water chemistry combinations that minimize the potential for corrosion and disrupting rust and scale layers inside residents’ pipes, with the goal of finding a balance of chemicals that not only reduces the problems in northeast Fresno but also heads off the potential for similar concerns from a new, larger plant now under construction in southeast Fresno that is expected to become operational in 2018.
The city faces a potential class-action lawsuit from residents who assert that improper treatment of surface water at the plant “caused the corrosion of pipes and plaintiffs to be exposed to excess levels of lead and other hazardous substances,” and alleges that the city failed “to test, report and investigate its issues with its water supply and notify and warn the public of the same. …”
During 2016, The Bee also covered last April’s suspension with pay of Fresno County Probation Chief Rick Chavez by Fresno County Superior Court’s executive committee of judges. Chavez was under investigation for five months until Fresno County Superior Court judges voted in September to retain him.
The months-long controversy pitted Fresno County supervisors and county officials against the court’s executive committee. County officials said they were never advised of Chavez’s alleged deficiencies until after he was placed on paid leave and the first investigative documents were delivered to them in June.
Fresno County was required to hire a lawyer and eventually paid a settlement to Chavez so he wouldn’t sue. The county also paid his salary and benefits during his leave. The county willingly offered its billing information to The Bee, which totaled $188,000, including salary.
But when the Superior Court was asked for its billing for lawyers and the investigation of Chavez, the court’s managing research attorney said the Fresno County Superior Court wasn’t required to give The Bee those records.
The Superior Court also wouldn’t accept Public Records Act requests by email or by letter hand-delivered to its offices. The letter had to be sent via certified mail, adding two work weeks to the return delivery of each records request.
Through its network of sources, The Bee was able to acquire billing information from emails sent by members of the judges’ executive committee to establish the amount spent by the Superior Court. The email from Presiding Judge Kimberly Gaab told fellow judges that the Superior Court spent $175,000 for its law firm’s assistance and the costs of its investigation.
The Bee’s first Public Records Act request was mailed on Sept. 26. A second was mailed on Oct. 13. A story about the Superior Court’s billing was published on Oct. 26.
Subsequently, Fresno County voters rejected Measure T, which would have amended the county charter to place hiring and supervision of the probation chief’s position under the authority of the county administrative officer and Board of Supervisors rather than Superior Court judges. In the Nov. 2 election, almost 53 percent of the county’s voters said no to Measure T.