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Friday, August 08, 2008

Vanguard Loses Efforts to Get Email Through Public Records Act

It has been a long process that has apparently ended this week with a visiting Judge from Colusa County denying a writ that would have required the city of Davis to release an e-mail that was requested by the Vanguard through a public records request. There are appeal options however.

The story begins in early January of 2007. Based on a tip, the Vanguard ran a story that became a bombshell that reverberated throughout city. On January 10, the story ran on a formerly fired police captain ending up on the short list for police chief.

According to the tip, a Yolo County Judge, Dave Rosenberg, had sent an email to the Davis City Council lobbying them to hire this individual as police chief.

On January 22, 2007, The Vanguard made a simple request to obtain the email through a public records request shortly after the story first ran; however, the city denied the request--twice. They argued that this was part of the deliberative process and was thus exempt from disclosure under the exemption clauses of the California Public Records Act. Furthermore, they argued that this was part of the application process and thus exempt for disclosure.

Under the California Public Records Act, the eventual recourse for obtaining records is to take the agency to court. One of the problems with the California Public Records Act is that there is no administrative appeal other than to the denying agency. There is no independent agency that can examine PRA Requests. And there are minimal penalties for failure to disclose--basically you can receive the requested documents and recover court costs... if you win in court.

In March, with the help of Attorney Don Mooney, the Vanguard formally filed a petition for writ of mandate. Because the request involved Judge Dave Rosenberg, we quickly realized that no Yolo County Judge would take the case. So we had to wait for a visiting judge to take it. It would be until June 13, 2008 before the case was finally heard. Already nearly a year and a half after the fact. This is one more example of the many problems associated with the Public Records Act. The city has now long since hired a new police chief.

The city argued:
"During the recruitment process, Judge Rosenberg (former Mayor of the City), sent an e-mail to the Council with a recommendation regarding one of the applicants, apparently under the mistaken perception that the City Council was responsible for appointing the Chief of Police."
The problem with that argument is that Judge Rosenberg is a former Mayor of Davis. Of all people, he knows the rules and knows that the Davis City Council is not the body that hires a police chief. The City Manager is.

The city goes on to argue that the application process is confidential and the applicants submitted to the process under the belief that their applications and related papers would not be made public. For some this would potentially subject them to problems in the work place.

Our counter-argument here is simple. This email was submitted not to a decision-making body but rather to the city council, outside of the normal application process. Thus this is not a simple letter of reference made to an authority that has hiring power. Judge Rosenberg knew the law and was using this as an opportunity to try to lobby for his friend to get hired.

In addition, the PRA allows disclosure of documents that might otherwise be exempt if there is a strong and compelling public interest to so.

To this point, the city argued:
"Against these strong privacy interests, there is no strong public interest in disclosure. The only possible public interest served by disclosure of the e-mail regarding the unsuccessful applicant is to assist the public in determining whether the City Manager is accurately carrying out his responsibilities in investigating and approving applicants for the police chief position. However, such checks on the process are not necessary when the top five applicants were interviewed by panels made-up of various individuals, including local residents. Disclosure of the e-mail would serve no other purpose than to embarrass the unsuccessful applicant and unnecessarily intrude upon the privacy of both the applicant and the author."
However, to our point, a point that the Judge seemed to agree on during oral arguments, there is a strong and compelling reason for the public to know in this case. You have a sitting judge making a recommendation to the Davis City Council, which is outside of the normal application process. In other words, this is tantamount to a lobbying effort by Judge Rosenberg to pressure the Davis City Council to hire his buddy to be police chief. Judge Rosenberg has to reside over court cases brought forward by this individual and the people under this individual's charge and duty.

As Don Mooney wrote in the response brief:
"Petitioner disagrees with the City's assertion that this would be only public interest served by disclosure. The City's argument ignores the source of the e-mail and the recipients of the email. The recipients of the email was not the City Manager, but the members of the City Council. More importantly, the source of the email is a Yolo County Superior Court Judge, who is now the Presiding Judge of the Yolo County Superior Court. Presumably matters involving the City of Davis Police Department will come before Judge Rosenberg in his capacity as a Superior Court. The Police Chief will be responsible for the policies and actions of the officers under his command and such policies and actions may be reviewed by the Superior Court in any number of ways and instances. The matters that come before the Court may range from criminal prosecutions in which police officers and/ or the police chief testify, to alleged police misconduct to alleged civil rights violations involving the Davis Police Department...

The City's argument may carry more weight if the "letter of reference" was not sent by a judicial officer but instead by a neighbor or former employer or an average citizen within the community. But it was not. As such, a strong public interest exists in disclosure, not to review the role of the City Manager in carrying out his duties, but to review the role a Superior Court Judge sought to have in the selection of a Chief of Police."
The Judge in oral arguments seemed to agree with this view, pressing the city very hard on this issue. However, in his ruling, he ruled on their side following an "in camera" review of the email in question.

In a four page ruling, the Judge wrote:
"The overarching principal is to protect the privacy of the individual and the principal must be applied in this case not withstanding the circumstances under which the case is now before the Court. In balancing the public interest in disclosure against the competing public interest of preventing secrecy in government the Court finds based on this document that disclosure would be an unwanted invasion into the privacy of the applicant and the Court finds no compelling public interest in disclosure and the need for protecting the privacy of individuals in this class of circumstances clearly out weighs any public interest in disclosure."
This was clearly a disappointing ruling from the perspective of the Vanguard and the fight for the public's right to know. I still believe that there is a very compelling reason for this document to be made public, because it shines a light on what I believe was an inappropriate attempt by the sitting Judge, a Judge who is now the presiding officer of the court, to insert himself into the hiring process for the Davis Chief of Police. That action in my view is highly inappropriate and the public ought to know what exactly Judge Rosenberg said in lobbying a body that had no power whatsoever to hire the police chief and in fact had no knowledge of who the finalists for the position even were.

According to the law, the Vanguard has the right to appeal the ruling within 60 days of it being filed. However, this would be a costly endeavor and that cost must be weighed against the chances for success.

To this day, this process has been a valuable one to give me further insight into the process and the weaknesses of the Public Records Act.

On Wednesday, on the Vanguard Radio show, we talked with Investigative Report Thomas Peele, who is an expert on the California Public Records Act and watchdog Barry Allen of the group, the Vanguardians, a Glendale-based public watch dog organization. One of the main topics was the California Public Records Act and how the Act is weak. Thomas Peele for instance had numerous suggestions on how to improve the public records act. To listen to the podcast online, please click here.

---Doug Paul Davis reporting