Vallejo response to Brown Act
| Tracking # |
19-368 |
| Submitted | June 18, 2019 |
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Communications
From: Dan Rubins
To Whom It May Concern:
Pursuant to the California Public Records Act and the Vallejo Sunshine Ordinance (Ord. 1426 N.C.(2d) § 1 (part), 1999.), I hereby request the following records:
Any communications and documents regarding complaints about potential Brown Act (Ralph M. Brown Act, Govt. Code, Sections 54950, et seq.) violations, and any subsequent deliberations (see 2.08.010 § B of the Vallejo Municipal Code), actions, or remedies related to the alleged violations. To the extent any records are available beyond the city's record retentions schedule (closure or settlement plus 7 years, per 42 USC 1983), I would also appreciate records created since the passage of the Vallejo Sunshine Ordinance in 1999.
I understand older records often take longer to locate, so I am happy to release the city from the statutory production requirement for the bulk of documents, as long as more recent records (last 5 years) are produced within the required timeframe.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter.
I look forward to receiving your response to this request within 10 calendar days, as the statute requires.
Sincerely,
Dan Rubins
From: Office Of The City Attorney
City of Vallejo
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Hi there
Your record request #19-368 has been submitted. You can see it anytime at the link below.
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>
From: Office Of The City Attorney
City of Vallejo
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Hi there
A message was sent to you regarding record request #19-368:
My office represents the City of Vallejo (the “City”) in connection with the City’s response to your PRA Request sent and received on June 18, 2019. I have been authorized by our client to provide a determination on your request for records. Your request states in part:
“I understand older records often take longer to locate, so I am happy to release the city from the statutory production requirement for the bulk of documents, as long as more recent records (last 5 years) are produced within the required timeframe.”
The Public Records Act requires public agencies to assist members of the public in identifying records and information that are responsive to their requests. (Gov. Code § 6253.1(a)(1).) In compliance with this obligation, we have highlighted in bold some of the language to show the parts of your request that are unclear, and to demonstrate the City’s need for additional information to help identify records that may respond to your request. Please describe what is meant by the “statutory production requirement.” Also, please confirm the time period for your request. The requests asks for records beyond the City’s record retention schedule and back to 1999. Please let us know if a more reasonable time period for the records you are seeking would be within the past five (5) years.
We welcome a discussion on how to best provide you with what you seek. For example, is there a particular record you are seeking from twenty (20) years ago that justifies the City searching through decades of old records? Is there a specific complaint or action you are interested in? Please let us know so the City may conduct a more targeted search and minimize the use of staff time and resources spent on extraneous records.
The City has also identified records that appear to respond to your request. As you may be aware, the California Public Records Act permits a local agency to withhold from disclosure certain records that are exempt from disclosure. (Gov. Code § 6250 et seq.) The City will be redacting or withholding records responsive to your request, pursuant to one or a combination of the following exemptions:
* Attorney-client communications are exempt from disclosure pursuant to Section 954 of the California Evidence Code, which is incorporated into the Public Records Act through California Government Code Section 6254(k).
* Attorney work product is exempt from disclosure pursuant to the California Evidence Code and Section 2018.030 of the California Code of Civil Procedure, which are incorporated into the Public Records Act through California Government Code Section 6254(k).
* Information that is part of the City’s decision-making process is protected if disclosure would expose an agency's decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions, through the deliberative process privilege. (Gov. Code § 6255; see also Wilson v. Superior Court (1996) 51 Cal. App. 1136, 1142.) California Government Code Section 6255 exempts from disclosure documents which are protected by the deliberative process privilege. (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1342.)
* The information is exempt from disclosure pursuant to California Government Section 6255, as the public interest served in not disclosing the information clearly outweighs the public interest served by disclosure.
The Public Records Act requires the City to provide a written response when a records request is denied, either in whole or in part. (Gov. Code § 6255, subd. (b).) The Public Records Act also requires that notification of denial of any request for records must include the names and titles or positions of each person responsible for the denial. (Gov. Code § 6253, subd. (d).) With the name and title provided below, this correspondence fulfills both of the aforementioned legal requirements.
Given the volume of responsive records and the need to review those records for information exempt from disclosure under the PRA, the City will provide disclosable records to you subject to the exemptions described above (and any further exemptions found during review) in accordance with the following production schedule: July 31, 2019, August 31, 2019, and September 30.
If we are able to make the records available prior to the dates indicated above, we will do so. Likewise, if we require additional time to complete the review and redaction, if necessary, of the responsive documents, we will notify you in writing on or before the above listed dates.We look forward to receiving any additional information you can provide to assist us as we continue to process your request.
Samantha Chen
for BEST BEST & KRIEGER LLP
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>
From: Dan Rubins
Ms. Chen,
Thank you for your quick response and the detailed information you provided. I hope this addresses each point, but if I miss something, please feel free to follow up or give me a call at (415) 894-0240.
- The timeframe of my request is 20 years, though I accept records on the older side of this could have been destroyed in compliance with the city's records retention schedule and may no longer be available. I also understand that older records can be more difficult to find. My aim was to communicate that it is acceptable to extend the timeline from the 10 days + 14 extension days in the CPRA statute to allow the city more time to find those older records. The shorter 5-year timeframe I mentioned is arbitrary and more illustrative of the point that if recent records can be identified and produced faster than older records, I would appreciate receiving records as they are available instead of one batch containing 20 years of records. Whether that number is 2, 3, 4, or 5-years is less important to me. If preferable, I can submit a request for records in the last 5 years with no mention of a waiver, and a second request for records 5-20 years old with language that waives the statutory timeline.
- The overall timeline you proposed is acceptable. By my count, the first production would be 29 business days post-receipt, which is close enough to the 24 business days required by CPRA.
- I am not aware of any specific records of alleged Brown Act violations or complaints to the city. Thankfully for all Californians, actual violations of the Brown Act seem somewhat rare. My goal is to obtain public records of cases where someone has complained or alleged there was a Brown Act violation as well as the records that relate to the city's response. A member of the public may have even sued to enforce the Brown Act; records about that case (or cases) would be of particular interest. In a less weighty hypothetical, a city employee could have committed an inadvertent Brown Act violation. Following a complaint, the city may have taken corrective action like instituting a new complaint process, disciplining the employee, or making a note in the employee's record. In a case like this, I would not care to see the employee's full personnel file, or even their name, but just to obtain records that relate to the city's overall response and any corrective actions to processes or for that one employee. Just to be clear, I use the examples in this section to illustrate my request so the city may fully and efficiently respond to the request, rather than to limit or modify the request.
- As you mention, there are statutory exemptions for privileged communications and deliberative process in CPRA, though I would remind you that under CPRA these exemptions are construed narrowly by the courts. I am concerned that the deliberative process exemption could be applied too broadly and feel that it is relevant to mention that, as cited by the Justices in the Times Mirror case that you cited, "courts have uniformly drawn a distinction between predecisional communications, which are privileged [citations]; and communications made after the decision and designed to explain it, which are not." NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at pp. 151-152 [44 L.Ed.2d at p. 48]. There are also other limitations of the deliberative process exemption, as the Justices cite in Times Mirror, "that it requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other." (EPA v. Mink, supra, 410 U.S. at p. 89 [35 L.Ed.2d at p. 133].). In addition, the historical nature of many of the presumed records would seem to invalidate concerns in Times Mirror that rest on disclosure before an event (i.e. public outcry over a future appointment with a controversial group), as well as those that rest on concurrent or near-concurrent disclosure (i.e. the Governor's security concerns), rather than events up to 20 years old involving people that may no longer work for the city, including those that are retired or dead. It would be difficult to show that the public interest is served and "clearly outweighs" that of disclosure when the other side is the possibility that a former employee, retired, or even dead person may not be candid in future policy discussions. Of course, these questions only apply to the deliberative process exemption as applied to CPRA. The Vallejo Sunshine Ordinance, which provides transparency beyond CPRA, "is intended to ensure that [governing bodies'] **deliberations** and the city’s operations are open to the public to the full extent permitted by law" (emphasis added). In addition, the Ordinance specifically calls out communications about the Brown Act and other statutes in a manner that seems pretty comprehensive: "Any opinion or communication in writing to or from a city agency or city officer or employee regarding the Ralph M. Brown Act, the Political Reform Act of 1974, Govt. Code, Sections 81000, et seq., the California Public Records Act, or this chapter shall be subject to disclosure, and made available to the public for inspection or copying upon request." I am not a lawyer and am unclear if such language itself waives privilege held by the city, or if the courts have even decided cases on this matter with similar Sunshine Ordinances in California, but I would strongly encourage disclosure of all such communications as I consider these to be included in my request. With government transparency now constitutionalized following the passage of Prop. 59, access to public records is of primary importance. Finally, please be sure to identify if any records are withheld, in whole or in part, due to any exemption and identify the basis for any redactions.
- I know that a comprehensive search of 20 years of records, even with an extended timeline, will require some effort. I am happy to discuss a search strategy that makes proper use of the city's limited resources. I am unsure how such records searches are conducted, but perhaps the city could start with a keyword search for terms like "Brown Act" "Bagley-Keene" etc. and then gather related records to those records mentioning a keyword. Perhaps there are other keywords or restrictions, which we can collaborate on (which would certainly fulfill obligations under 6253.1(a)(1)), to deliver the requested records most efficiently.
Thanks so much for your help with this request!
Dan Rubins
From:
Hi,
Thanks for reaching out. This is actually an email address for technical support for the site and we aren't directly involved in responding to requests.
To inquire about the status of your request, reply directly to one of the notifications you received where it says -- Reply ABOVE THIS LINE to post an INTERNAL message that will be sent to staff. Attach a non-image file to have it uploaded to the request as a staff-only document. --
You can also reach out to Muckrock directly to ask for an update on your request.
Best, Rosellen
From: Office Of The City Attorney
Use this to confirm your account. The link is only valid for 24 hours.
City of Vallejo
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Hello MuckRock News (Dan Rubins)!
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From: Office Of The City Attorney
City of Vallejo
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Hi there
A message was sent to you regarding record request #19-368:
https://www.imanageshare.com/pd/9I5bJh16dAu
The City has located several documents responsive to your request. They are being made available via the hyperlink above. If you have trouble accessing the documents, please let us know. The City is continuing to search for and locate documents and will provide you any additional, responsive, non-exempt documents by the scheduled production date mentioned in our prior response.
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>
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PRA19-36820-20first20production.zip
From: Office Of The City Attorney
City of Vallejo
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Hi there
A message was sent to you regarding record request #19-368:
Dear Mr. Rubins,
The City has located an additional document responsive to your request, which it is releasing today. The City is continuing to search for and locate documents and will provide you any additional responsive, non-exempt documents by the scheduled production date mentioned in our prior response, September 30.
Thank you.
Samantha Chen
for BEST BEST & KRIEGER LLP
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>
From: Office Of The City Attorney
City of Vallejo
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Hi there
A document has been released for record request #19-368:
* Pippin Dew 19-368.pdf
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>
From: Office Of The City Attorney
City of Vallejo
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Hi there
A message was sent to you regarding record request #19-368:
https://www.imanageshare.com/pd/9w3hFUOaetk
The City has located additional documents responsive to your request, which it is releasing today.
As you may be aware, the California Public Records Act permits a local agency to withhold from disclosure certain records that are exempt from disclosure. (Gov. Code § 6250 et seq.) The City has redacted the records being released today pursuant to the attorney-client communication exemption. Attorney-client communications are exempt from disclosure pursuant to Section 954 of the California Evidence Code, which is incorporated into the Public Records Act through California Government Code Section 6254(k).
The Public Records Act requires the City to provide a written response when a records request is denied, either in whole or in part. (Gov. Code § 6255, subd. (b).) The Public Records Act also requires that notification of denial of any request for records must include the names and titles or positions of each person responsible for the denial. (Gov. Code § 6253, subd. (d).) With the name and title provided below, this correspondence fulfills both of the aforementioned legal requirements.
The City is continuing to search for and locate documents and will provide you any additional responsive, non-exempt documents by October 31, 2019.
Thank you.
Samantha Chen
for BEST BEST & KRIEGER LLP
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>
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9.30.1920response.zip
From: Office Of The City Attorney
City of Vallejo
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Hi there
A message was sent to you regarding record request #19-368:
On October 27, 2019, the City Manager signed a Declaration of Emergency due to the fires, severe wind and power outages. City Hall is currently without power. We expect to address the PRAs when normal business operations resume. We do not have a firm date but it’s not looking good for the rest of the week.
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>
From: Office Of The City Attorney
City of Vallejo
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Hi there
A document has been released for record request #19-368 along with the following message:
The City has located an additional document responsive to your request, which it is releasing today. The City is continuing to search for and locate any additional potentially responsive documents in its possession, and will provide you any additional responsive, non-exempt documents by December 5, 2019.
* Hakeem Brown 19-368.pdf
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>
From: Office Of The City Attorney
City of Vallejo
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Hi there
A message was sent to you regarding record request #19-368:
Although we originally anticipated providing the final set of documents in response to your records request by today, December 5, 2019, we are still working on a final review of the remaining documents located by the City related to your request and do not currently have a set of documents ready to provide at this time. We will provide an update and/or additional responsive, non-exempt documents by December 16, 2019.
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>
From: Office Of The City Attorney
City of Vallejo
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Hi there
A message was sent to you regarding record request #19-368:
https://www.imanageshare.com/pd/8siQ6GAEDo0
The City has identified records in its possession that appear to respond to your request. The records are being made available to you in the electronic format through the link provided today.
With this message and the documents provided, the City believes that is has disclosed all records responsive to this request, and deems this request complete. Please feel free to contact us should you have any additional questions or concerns. Thank you.
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>
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Final20Production2019-368.msg
From: Office Of The City Attorney
City of Vallejo
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Hi there
Record request #19-368 has been closed and published.
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Vallejo.<br></br><em>Technical support:</em> See our <a href='https://www.nextrequest.com/support'>help page</a>