PUBLIC INFORMATION — San Diego's new city attorney agrees with his predecessor, whom he defeated in November: the deliberative process (AKA executive) privilege used to shroud government decision-making is of dubious legal authority after Proposition 59.
Maybe lower ranks in the city attorney's office literally didn't get the memo, however. Rob Davis, writing for the Voice of San Diego, reports that they're citing deliberative process to block his information request for records bearing on the development of a questionable water rationing plan.
Update: Davis has just announced
that the Voice of San Diego today gave the city a 24-hour ultimatum to
change its denial position or defend a lawsuit under the California
Public Records Act.
The city argues that the 692 e-mails I've requested are subject to
the "deliberative process privilege." In short, the city claims it must
keep the e-mails secret to protect the officials' decision-making
process. If those officials knew the public would see what they
e-mailed about, the city argues, they'd be less likely to discuss
policy candidly. And the harm that would inflict on the public
outweighs the benefits of being transparent, the city says.
But
the city already turned over some e-mails in which its officialsAlex Ruiz, the Water Department's assistant director and Gerry Braun,
the U-T columnist turned Sanders aidediscuss policy ideas. And it
turned over drafts of some documents in responding to our request,
despite claiming that drafts should be kept secret.
In
justifying its case, the city cites a 1991 court ruling against the Los
Angeles Times that allowed Gov. George Deukmejian to keep his calendars
secret. That case has since been challenged. The California First
Amendment Coalition sued Gov. Arnold Schwarzenegger for his calendars;
Schwarzenegger turned them over in a pre-trial settlement.
What was different? California voters approved Proposition 59 in 2004. The ballot argument for the ballot measure said:
Proposition
59 is about open and responsible government. A government that can hide
what it does will never be accountable to the public it is supposed to
serve. We need to know what the government is doing and how decisions
are made in order to make the government work for us.
In 2005, former City Attorney Mike Aguirre opined that in the wake of Proposition 59, the Times-Deukmejian case "is of dubious authority."
Aguirre's
opinion said voters had decided that keeping an eye on government
officials outweighed the benefits of keeping their decision-making
process secret. Aguirre's opinion said with the proposition's passage: "Voters
in their law-making capacity appear more concerned about the corruption
secret government makes possible than chilling the discussions amongst
their public officials."
Goldsmith today whether Aguirre's legal opinion was still being
followed. Yes, he said. In an e-mail, Goldsmith wrote:
The Opinion is on our web site and its legal analysis is sound. There has been no change in interpretation.
So,
at the same time that Goldsmith stands behind the opinion, which
concluded the Times-Deukmejian case is of "dubious authority," his
attorneys are citing it to me as the main reason for keeping those 692
e-mails from being disclosed.
People who advocate the fiction of “they’d be less likely to discuss policy candidly” to justify not providing public records of discussions with policy makers don’t acknowledge that people are still free to provide unvarnished oral advice.