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Tuesday, April 3, 2007 | On April 10 of last year, a member of the public walked into the San Diego County Board of Supervisors clerk’s office and asked to see Supervisor Bill Horn’s economic disclosure forms.
The county asked the man to fill out a request form and to provide personal information. He identified himself as Eric Helfand and gave his phone number. A call to that number reveals that Helfand is a special agent with the Internal Revenue Service’s criminal investigation division, the IRS’s law-enforcement arm.
We shouldn’t necessarily know who was interested in Horn’s economic interest disclosures. Horn was then under media scrutiny for failing to report a $349,000 payment he received from his chief of staff for living in the supervisor’s Carlsbad home.
If the county required the IRS agent to identify himself in order to get the information, it ran afoul of the open-government laws that protect members of the public from having to disclose their identities in order to receive those documents. It would not have been the only time the county government has had trouble with those laws.
On two other occasions, it has refused to disclose public information or thrown up obstacles in the way of doing so. Open-government advocates say the county’s compliance with the law isn’t surprising, given that few public agencies disclose everything they should.
“They want to know about you. But they don’t want to disclose what the law says they must about themselves,” said Terry Francke, general counsel for Californians Aware, an open government advocate. “They want to know who’s asking, but they don’t feel compelled to answer all the time.”
State law protects the public from having to provide any personal information if they want to see officials’ conflict-of-interest forms, which detail public officials’ financial interests such as stock ownership, real-estate holdings and gifts received.
But since Jan. 1, 2006, 33 people have filled out the county’s written requests, which ask for a person’s name, e-mail address, company name, phone and fax numbers. Many were local reporters interested in Horn last April. But others searched, too. One was identified as a county internal affairs official who wanted the conflict-of-interest form for Chandra Waller, a deputy chief administrative officer. Another was identified as County Counsel John Sansone, who sought Supervisor Pam Slater-Price’s economic statement.
Legal bills turned over by the county of San Diego in response to a public records request were almost completely redacted. In contrast, a similar document from the city of San Diego includes all but the privileged details. Click on the images below to enlarge.
The county clerk’s office says the 2-year-old forms are not mandatory — though the clerk’s front-desk staff did not tell a reporter that on two recent occasions. Clerks’ offices in Los Angeles and Orange counties said they do not have such a form.
David Hall, the supervisors’ chief deputy clerk, says the internal report helps ensure that people who ask to see the forms are having their requests fulfilled. “We’re not requiring them to give information,” he said. “If someone says they don’t want to give information, that’s OK. We wouldn’t refuse the request on that basis.”
Hall pointed to two instances during the last year in which people have refused to provide personal information. But a voiceofsandiego.org reporter was responsible in both cases. When that reporter recently declined to provide his identity, he was challenged by an employee to cite the relevant law. Hall said he would investigate that incident.
The forms should make clear that the information is not required, Francke said.
If the clerks don’t tell the public the form is optional, “that makes any defensive remarks ring entirely hollow,” he said. “If it is a request and not a requirement, then they’re obliged to tell people that.”
It is not the only time that San Diego County government has operated outside the spirit of open government. That transparency is founded on the notion that taxpayers have an absolute right to know what their money is being spent on. Everything from a supervisor’s salary to internal communications are public records. But in at least two other examples from the last two years, the county has withheld information and e-mails that legal experts say should have been public.
In a 2005 request for a keyword search of eight months of archived e-mails, the county’s attorneys said the old e-mails from the District Attorney’s Office could be produced.
But to do so, they said, would cost the news agency $167,117 and take a year.
In another incident, consultants’ billing information was completely redacted, something that legal experts say was unfounded.
Such incidents are hardly unusual in California, open government experts and advocates say. A 2007 audit by Californians Aware found that law enforcement employees routinely refuse to provide information that should be disclosed. The San Diego County Sheriff’s Department received three failing grades for its lack of disclosures.
Many government agencies “feel like they don’t have to turn anything over, and the less they turn over the better,” said Jodi Cleesattle, a media lawyer who serves on the San Diego Society of Professional Journalists’ board of directors. “But that’s not how the law is written. The spirit of the open records law is that the people have the right to know exactly what the government is doing.”
But if you asked the county what day-to-day role its consultants are playing in the Chargers stadium search, you wouldn’t get an answer.
voiceofsandiego.org requested invoices for the two consultants — Nixon Peabody, a Los Angeles-based law firm and Barrett Sports Group — that have been working with the county. While the invoices detailed total hours worked and total fees billed, they provided no more information. Richard Jones, a Nixon Peabody attorney, spent an hour working on case on Dec. 15, billing taxpayers at a rate of $565 per hour. Three days later, he worked 36 minutes on the Chargers search.
What did he do? The county won’t say. In total, the two consultants had spent 180 hours working on the Chargers issue through January. The specific duties they undertook remain a mystery. The information was completely cut.
County Counsel John Sansone said the description of services was covered by the attorney-client privilege.
“I don’t make those things up,” he said. “It’s standard practice when we hire outside consultants — if I’m working with them and there are legal issues involved — we simply assert the exemption.”
But Cleesattle, the media lawyer, said Sansone is wrong. The county cannot fully redact all billing information.
“The line information may contain some privilege, reflecting what they talked about,” Cleesattle said. “But the run-of-the-mill routine time entries, they shouldn’t be wholesale blocking it out. It’s not privileged.”
As the San Diego City Council has grappled with the SEC investigation, its members have retained taxpayer-funded attorneys, who submit similar bills. Unlike the county, the city redacts only the privileged information within the bills.
Fred Sainz, a spokesman for Mayor Jerry Sanders, said the city acknowledged that its council members had a right to protect the content of conversations with their attorneys. But the bills had to state, line-by-line, that those conversations took place.
“The citizen should be entitled to know how much is being paid in legal bills on a line-item basis,” Sainz said. “But they didn’t have a right to know what that conversation for that specific item would be for.”
Sansone said different agencies may interpret the law differently. “The law is supposed to apply equally, but people read it and apply it differently. We’re pretty experienced here with the Public Records Act. Obviously, I see it differently than you or folks who are advising you on that.”
Sansone acknowledged that the county may have tried to charge too much in another case involving a voiceofsandiego.org records request.
At the time, District Attorney Bonnie Dumanis was trying to absorb City Attorney Mike Aguirre’s criminal division. Searching eight months of Dumanis’ office e-mails would take a year to complete and cost $167,117, a senior county attorney said then.
While open government experts said such a search would not be free, they said the price was excessive.
“That hardly sounds credible,” Francke said. “It doesn’t ring true to any experience I’ve had.”
“Did anybody push back?” he asked. “It sounds high to me, too.”