Letter: When Is a Fight Not a Fight?

If you’ve been following the voiceofsandiego.org blog over the past few weeks, you might have noticed that reporter Liam Dillon claims to be in a “fight” with City Attorney Jan Goldsmith. Goldsmith, who has been an elected official for more than 20 years and an attorney for almost 40, has been in a lot of fights over a lot of meaningful issues.

This isn’t one of them.

Dillon demanded something. Our office said he won’t get it without a court order because that’s what the law requires.

Since then, Dillon and other VOSD staffers have spent considerable time trying to bully the City Attorney’s Office into turning over the information. They tried calling him a name — a barnyard animal. They posted incomplete information and distorted headlines. They “called him out” on Twitter. And, they got nowhere, swinging wildly in the air. Some fight.

Here’s the punch line: This office would like to see the information disclosed in the interest of the public’s right to know. This is a vote on taxes we’re talking about, after all. But we cannot do that under the law without a court order. Following the law is sometimes inconvenient, but always necessary.

This so-called fight is about the election being held by hotel property owners to impose a Mello-Roos-like tax on their properties for the Convention Center expansion. The votes are weighted based upon the hotel operators’ last year of revenue that they reported to the city for purposes of calculating transient occupancy taxes.

So, VOSD wants to know the number of votes held by a hotel property owner. The city attorney has said that’s a legitimate request.

The problem is that the law creating the hotel vote instructs the city clerk to protect the confidentiality of the ballots absent a court order because “the number of votes assigned to each Hotel may be considered to contain proprietary commercial information.” The number of votes is based upon revenue reported for tax purposes.

In addition, the city’s transient occupancy tax ordinance requires confidentiality of the information absent a court order. Taxpayers are compelled by law to provide this information to the taxing authority (the city) and the taxing authority can only use it to calculate taxes.

When Dillon made his request, Deputy City Attorney Brant Will researched the law and produced a five-page legal opinion showing that the documents requested could not be released without a court order because they disclose tax and proprietary information that the city is prohibited from voluntarily disclosing. Will consulted with outside counsel — Orrick, Herrington & Sutcliff — who concurred with Will’s legal opinion.

Even a lawyer quoted in one of Dillon’s article states that our legal conclusion “falls within the bounds of the law.” That lawyer did not agree with withholding the information, but he did not do so on legal grounds.

Why not just disclose the taxpayer information? A taxing government entity should not do this. How would you like the IRS posting your tax return information on the VOSD blog? That’s the kind of government conduct that draws lawsuits.

The city’s tax people are working on alternatives that would not involve releasing taxpayer information. One of the suggestions came from Dillon. There are a few others also being reviewed.

One of the reasons we have the courts is to act as a check on government. Only a judge gets to decide whether taxpayer information should be disclosed. But, the fact is that hotel operators have done nothing to waive their rights to confidentiality. This is a tax proposed by the city. And, the city cannot create its own exception to the confidentiality laws.

So, tell me again, what is this “fight” about? The law says we cannot disclose taxpayer information without a court order. No amount of name-calling and distortions under the guise of public-interest journalism will change that.

Jonathan Heller is communications director for the City Attorney’s Office.

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