The Milpitas City Council last night provided the best example of why local sunshine ordinances are not safe unless they’re passed by a vote of the people. The council on a 3-2 vote decided to repeal a provision of the ordinance it adopted in 2005 that had kept it from arguing that the public interest allowed withholding of information not made confidential by law.  The action at the meeting is reported by Ian Bauer in the Milpitas Post, but the conflict originated in a spat on the council itself.

Last year, as Bauer reported, Councilwoman Debbie Giordano made a public records request for various material including surveillance camera videotapes and electronic key card security logs showing who had entered city hall on various dates and times, apparently hoping to document suspected inappropriate use of city facilities by Mayor Joe Esteves and Councilman Armando Gomez on different occasions.  The Mayor, she said, had used the building for a wedding event on July 31, a Sunday.

City Attorney Mike Ogaz denied her access to those records, citing security concerns, but cited no law making the records confidential. Giordano then filed suit in Santa Clara County  Superior Court, stating that she sought access to the records “in order to ensure that certain city officials are complying with the city’s public calendaring requirements, and potentially to determine whether they are engaged in private activity on city premises.”

On February 9 Judge Peter Kirwan ruled for Giordano, concluding that Orgaz’s argument against disclosure was based only on the assertion that the public interest in keeping the records from the public (to avoid misuse by those who might harm city officials if they knew their city hall arrival and departure routines) outweighed the public interest in disclosure.  But that balance of interests, permitted under the California Public Records Act in Government Code Section 6255, had been relinquished in the city’s sunshine ordinance, Kirwan noted.

What the council did last night was effectively to overrule Judge Kirwan by approving restoration of the ability to argue the public interest override.  And while Orgaz recited a list of “sensitive” but not flatly confidential documents this move would protect—potential targets of terrorists or other criminals—the effect of the restoration is much broader.  It permits the city to argue a public interest override as a basis for denying access to any record that is not already made confidential by state law, and force the information seeker, as it did in Councilwoman Giordano’s case, to go to court to try to gain access.

Moreover, the title wording of the approved ordinance was broad enough to approve the restoration of not only the public interest override but a particularly controversial application of it—the deliberative process privilege—typically cited by government agencies to withhold the paper (or digital) trail showing how decisions are made and who influences them.