The City of Encinitas will probably have to release the consultant's report it has been fighting to keep secret. The California Court of Appeal for the Fourth District today informed the lawyers for the city and for the man seeking the record that the city's request for review of a trial court order to release the report has been denied. The appellate court also lifted the stay on the ordered release.
Jonathan Horn reports in the San Diego Union Tribune, "The city now must decide whether to release the documents or appeal the case to the California Supreme Court. A closed-session meeting on what to do next is scheduled for 5 p.m. Wednesday at Encinitas City Hall."
As reported here in late May, the trial judge's order means that the city must release to a civic watchdog a consultant's approximately $97,000 study of street repair needs submitted in March of last year but made available to the public in 'final' form only last September. The city had argued that disclosing the original draft of the report would make the staff's job of analyzing and polishing such reports too difficult.
Report-seeker Kevin Cummins, represented by attorney Dennis Winston of Los Angeles (President of Californians Aware) told 10News in San Diego that "It looked to me like they were going to let this thing sit on the shelf because there was some embarrassing information in it."
Winston added, "It's our government. It's the people of Encinitas' money. Yes, they voted for the City Council, but it doesn't mean the City Council gets to say, 'You people are just an irritant. Get out of the way and let me do my job.' It's the people's money and they are entitled to find out why [the] government makes spending decisions."
The city tried to convince Judge Timothy M. Casserly that the deliberative process privilege—used most often to protect the relationship between a governor and his or her advisers and confidential contacts—was a policy basis for keeping initial draft consultant's reports from the public. But Judge Casserly said the relationships were too different for such a shift in policy, and instead followed a California Supreme Count case allowing the public to scrutinize how a city agency arrived at a competitive bid recommendation before the contract was finally awarded.
"After an analysis of the City's position," concluded Judge Casserly,
it is unclear how the release of the resulting Report would affect its decision-making process, as the request was made only after the process was complete. Regarding the City's concern regarding the burden of future requests should Petitioner's request be granted, the Supreme Court has already declared that such concerns are without merit, as a case-by-case analysis is required when making determinations on such requests. . . Any negative public reaction or confusion from potential, not confirmed, errors in the drafts are speculative and do not clearly outweigh the public interest in disclosure.