Update: On Tuesday Sen. Ben Hueso announced he was pulling SB 615 from consideration by the Legislature.
City Attorney Mara Elliott went out on a limb to change the state’s Public Records Act, an effort Mayor Kevin Faulconer believes conflicts with his efforts to create a more transparent city government.
Now other elected leaders in the city are pushing back, too – aggressively. The City Council voted unanimously Monday to oppose what they said was an attempt to undermine the state’s public records law. Last week, Faulconer himself made clear to Voice of San Diego that he did not support Elliott’s effort.
Before the vote, multiple Council members chastised Elliott for pursuing the legislation without telling them beforehand. The Council added language to the city’s official priorities before the state and federal governments opposing a bill sponsored by Elliott and being carried by state Sen. Ben Hueso.
In recent days, Elliott has backed a proposal to take the teeth out of California’s open records laws, citing an increase in the number of requests by people for taxpayer-funded city documents and the liability the city faces if officials break the law by failing to turn over public records.
Indeed, there has been a dramatic increase in the number of requests for records – which is exactly what the mayor had been hoping for when his administration funded a new system to handle those requests.
A decade ago, the city clerk said it received 340 Public Records Act requests in a year. That number kept rising but, in 2015, the city installed a new system to make it easier to track and handle those requests and the number shot way up. Last year, the city received about 4,800 requests.
Some of those are tiny requests about routine matters, like a copy of a city ordinance or some other scrap of paper. Some routine matters that previously might have been handled without a formal request are now routed through that system, potentially making the higher number of requests look more overwhelming than it really is.
Either way, the Faulconer administration views the system, known as NextRequest, as a success.
“We have seen requests soar since this online tool was launched,” city spokeswoman Katie Keach said in an email. “While more resources have been necessary to handle the increased volume of public records requests, we view this increased civic engagement as one of the tool’s biggest strengths.”
But that success is now cast as a failure by Elliott because it increases the city’s legal risks if city officials don’t turn over all the records they have.
“The untold story of the California Public Records Act is this,” Elliott wrote in a Union-Tribune op-ed last week. “The number of annual requests is exploding, and public agencies statewide are struggling to keep up. From public universities to tiny school districts, the cost of Public Records Act requests, and the risk of getting the response wrong, continues to climb.”
The California Public Records Act, like the federal Freedom of Information Act, allows public access to records that shed light on how government agencies operate. But the law itself doesn’t have much in the way of teeth, and going to court to challenge agencies that withhold documents or don’t respond to requests is the only way to compel them to comply with the law.
Hueso introduced a bill, at Elliott’s request, that would make it significantly more difficult to collect attorney’s fees from agencies found to be in violation of the law. That is often the only consequence agencies face if they fail to comply with a Public Records Act request, willfully or not.
The City Council’s decision to distance itself from Elliott’s push started Monday, with a memo from Councilman Chris Cate and Councilwoman Vivian Moreno, seeking to add opposition to the bill to the city’s annual legislative priorities in Sacramento and Washington, D.C.
“In short, this bill would devastate the Public Records Act and diminish the general public’s ability to compel a government agency to release documents,” their memo reads.
Councilwoman Monica Montgomery said the bill’s attempt to establish a standard in which those who sue governments under the Public Records Act would need to prove the government had knowingly and willfully withheld the records in order to collect attorney’s fees was “extremely concerning.”
Elliott’s actions – to try to change California law on behalf of the city without the support of the mayor or the city council – represent a dramatic reversal from her rhetoric during her 2016 campaign for office.
“Our role is not to tell them what to do, or if we don’t like it for political reasons or it just doesn’t feel right, we can’t put a kibosh on it,” Elliott told Voice of San Diego in September 2015, when she was beginning her run for office.
She contrasted her approach with the approach taken by former City Attorney Mike Aguirre, who said his client was the people of the city rather than other elected officials in city government. Elliott argued her client was those elected officials.
She said “the worst part” about Aguirre’s approach “is it created a lack of a relationship between the city attorney’s office and their own client, which is terrible because you don’t get things done.”
But Monday, a deputy city attorney reminded the Council that Elliott could sponsor state legislation on her own volition, since she was an independent elected official. That led to frustration from the City Council, who said Elliott’s support inappropriately signaled that the city itself shared her desire to weaken the Public Records Act.
“We know the city attorney can do this, but it’s a question of whether they should, not whether they can,” Councilman Mark Kersey said.
“I’m disappointed that the City Council was not consulted on this proposed legislation, though I know legally we don’t have to be,” said Councilwoman Barbary Bry.
On Friday, a spokesman for the mayor said Faulconer did not support the Elliott-Hueso plan, Senate Bill 615.
“In its current form, SB 615 runs counter to the transparency and open government initiatives Mayor Faulconer has championed since taking office,” Faulconer spokesman Craig Gustafson said. “He does not support this bill.”
One of Faulconer’s first acts as mayor was to rescind a plan to destroy city emails after a year.