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A commentary from Paul Bach in Scotts Valley

The city was responding to several requests made under the California Public Records Act by the Scotts Valley Responsible Local Development PAC on March 18. Of particular interest is a draft traffic report that is believed to have been shared with Target and Title II Investment Corp. (owner of the land where the proposed Target would be built) and documents and notes relating to communication between the city, Target and Title II.

It should be noted that the requests for information have not been made frivolously and that time is of the essence for public access to the draft traffic report the city is withholding. The city recently established a 30-day public comment period regarding the environmental impact of the proposed 155,000-square-foot Target store. The public comment period began April 1 and ends April 30. Traffic is a key component of the environmental report, and without access to the information contained in the draft, the people of Scotts Valley cannot reasonably be expected to make informed and complete comment about the proposed project.

According to the California Attorney General’s Office, “The fundamental precept of CPRA is that government records shall be disclosed to the public, upon request, unless there is a specific reason not to do so.” In denying the public records request, City Attorney Kirsten Powell makes three arguments:

1. The city is not required to release “draft or preliminary reports”
2. The city doesn’t have to release documents that will be discarded in the “ordinary course of business” after a final report is prepared.
3. The public interest is better served by withholding the documents, because releasing the information might disclose comments from city employees that city employees might want kept confidential.

With regard to the city attorney’s arguments for not releasing the material, the word “draft,” even if accurately descriptive of a document, does not unilaterally exempt a document from disclosure. The government must first show that the public interest is better served by the material not being released.

Additionally, while Government Code §6254, subd. (a) does exempt from disclosure “preliminary” drafts, notes or memos “that are not retained by the public agency in the ordinary course of business” and where a greater public interest is served by the documents not being released, in Citizens for A Better Environment v.

Department of Food and Agriculture, 171 Cal. App. 3d 704 (1985) the court ruled, “If preliminary materials are not customarily discarded or have not in fact been discarded as is customary they must be disclosed.”

In layman’s words, if the draft has not already been deleted, it must be disclosed unless there is a strong public interest for it not being released.

The city’s final argument, that “...the public interest in withholding those records clearly outweighs the public interest in disclosure,” does not hold up to scrutiny. The city hasn’t shown how the residents are better off without the information being released; all the city has argued is that the interest of the city and its staff would be better without a release of the documents. Courts have consistently maintained that a particular agency’s interest in nondisclosure is of little consequence in performing this balancing test; it is the public’s interest, not the agency’s, that is weighed.

The residents of Scotts Valley must be afforded access to this information, particularly now that the city has imposed a 30-day window for public comment. The right of the people to know in this case overwhelmingly outweighs the city’s implied need for the information to remain confidential.

If this information has already been made available to Target and Title II, the land owner, why then aren’t the residents of Scotts Valley afforded the same access?
Quoting from the preamble of The California Brown Act:

“The people do not yield their sovereignty to the bodies that serve them. The people insist on remaining informed to retain control over the legislative bodies they have created.”

Mayor Randy Johnson, City Council members, city staff and City Attorney Powell all have a fiduciary responsibility to the people of Scotts Valley. Now is the time for the city to finally open the Target review process to full public scrutiny.

Paul Bach is president of Scotts Valley Responsible Local Development political action committee.

Comments (3)

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General Counsel, Californians Aware
written by Terry Francke, April 14, 2008

I appreciate your sharing this with the public, Mr. Bach, and for what it's worth I agree completely with your assessment of the city's indefensible legal position. But I don't think these people are open to being shamed. Only court action will free up that report.

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City Admits the Traffic information was shared with Target and Title II
written by Paul Bach, April 16, 2008

At 4:07 pm on Tuesday April 15th, City Attorney Kirsten Powell admitted that the draft traffic report had been shared with both Target and Title II. This contradicted previous assertions by the City and the Mayor that the report had not been shared with proponents of Target. The City has now released the Draft report and it is available for viewing on the web page www.rldpac.org I want to thank everyone who assisted in forcing the City to release this information. Paul Bach

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Bait and switch.
written by Daryl Tempesta, April 16, 2008

The document which was delivered as a PDF, had information showing it was from a Word Document. Paul asked for the original and should receive the original- of which he has not. The report was created by "nhervol" on 4/4/08 - as the document cover states , but it also says it was modified 4/8/08 at 4:05 pm.

So even with this document there are 2 versions. Only one provided.

Now the City Atty said in a Mercury News interview that this Draft document was taken from a previous SEIR, and back three generations.

Paul should be provided all of these documents so the citizens can see the changes, and what the real deal is. So Sorry, the liability you created for yourself cannot be solved by creating other liabilities.People are watching and looking and tracking every detail of this process.

The think is that generally, you don;t let a lwyer do the work of a Buisness man or woman, you bring them in after the deal. She may be a walking encyclopedia concerning the Law. but as a Strategist she has proven to weak. This is something ScottsVAlley doesn;t need.

Mr Bustichi,you have more sense than the counsel you have been getting, I 'd work on letter her do the things she is good at, reading and interpreting legal documents. Allowing her to be the public mouth piece will never provide the solid solution the Counsel is looking for.

For that you need to peruse a strategy of transparency , and I will suggest wahy. It's simple..no one is as smart as all of us. The creative genius is what sets leaders apart from administrators.

Attys are trained to have an adversarial relationship, they are supposed to doggedly defend their client, the city in your case. This is a recipe for disaster, as you see unfolding with Paul.

The lack of imagination pared with having a legal administrator do the work you need have done is not using their strengths. This is not private business, it operates differently and the more open the better..even it it blows your timetable out of the water.

I can imagine you might have made indications this way or that and might have a little egg on your face, but in the face of new facts a good leader applogises and changes course. I hope you do. Some proposals may drop - but so what - they will move on to the next deal like the rest of us.

Regards.

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