August 22, 2022 — The Board of Supervisors last week discussed a media exemption to a new ordinance that charges hefty fees for public records.
On June 21, the Board passed the ordinance, after hearing from County Counsel Christian Curtis that some people requesting public records were doing so in order to conduct market research or to take up county government time. He said then that the county receives about 4.7 public records requests per day, and that fulfilling them takes about 20-30% of his attorneys’ time. He told the Board then that one person who is upset about a code enforcement issue is responsible for about 5% of the requests.
Members of the local media objected in person and by voicemail at the time, including Kate Maxwell, the publisher of the Mendocino Voice, Zack Cinek, who has an email newsletter on Substack called Newsboy, and me (Sarah Reith). It is unclear if anyone shared their opinion with the Board in writing, because February 8 is the last time that letters criticizing a proposed policy were attached to the agenda so the public could see them.
The fees are broken down into three categories: for duplicating documents, searching for documents that have not been specifically described, and specialized search and review fees, for when a request calls for staff to sift through records that are disclosable as well as those that are not. Requesters will be charged $20 an hour to search for documents and refile them. The charge for attorney time to sort out the public documents from those that are confidential is $150 an hour, or $50 an hour if non-attorney staff undertakes the task. The county will update the requester each time they’ve run through $50 worth of searching, and the requester can decide then whether or not to make another $50 deposit. Over-and underpayments are to be reconciled when the records are provided.
Last week, the Board agreed to create a public records request grant program for local media organizations to request the public records. Curtis told the Board that this would not have an adverse effect on the budget, though the stated reason that public correspondence has not been uploaded to the agendas for most of the year is that the county cannot afford to hire clerks.
Supervisor Glenn McGourty asked Curtis if there would be an application and vetting process for people requesting the media grant. “I think that’s going to be necessary,” Curtis said. “I don’t want to create a program that’s going to increase the overall amount of administrative work in a way that exceeds the benefit that’s being received…what we’re thinking is a relatively short application form. Something that would really just establish some basic criteria and would not require substantial vetting. For most media organizations, I think it’s going to be relatively straightforward to determine eligibility and be able to get that on file. I don’t know that it’s going to have to be exceptionally arduous for the ones that are more borderline. The more we can have simple, objective criteria, whether that’s circulation, et cetera. I really want to make sure that I’m clear on this up front. From a First Amendment standpoint, every piece of criteria is going to have to be viewpoint neutral. So we can’t look at things like the quality of the reporting, how accurate we think the information is. It’s really got to be something that’s tied to things like circulation, something that is showing that this is something that is effectively reaching a sufficiently sized audience to be a worthwhile investiture of the public funds and an efficient use of the resources. And then it’s really up to the media organizations and what has been referred to as the marketplace of ideas to be able to sort out where to go from there.”
I want to say here that I spoke again during public comment, and was encouraged to receive an invitation from County Counsel to work with his office offline to hammer out some of the complexities involved. My situation is that I am employed by KZYX, the public radio station in Mendocino County. I freelance for other outlets, and sometimes people volunteer to help me with research. Often, they wish to remain anonymous.
I accepted the invitation at the time, and I remain encouraged by the willingness to consider my input. But I ultimately bowed out of the meeting after reflecting that I do not personally believe the ordinance is perfectable.
Michael Katz, the Executive Director of the Mendocino Cannabis Alliance, summed up the experience of many of us who wish to have free and easy access to public documents.
“Just limiting it to media is something that is also not necessarily as beneficial as it could be for the whole community,” he argued. “There are many groups here that are engaged actively with the County and the goings-on there, and have constituencies. And there is, due to substantial understaffing…a lack of transparency in certain things. And so in the past when items that could easily have been provided by email have not been, it has been a requirement to go through a public records request process in order to get something that would just normally be seen as a part of the discourse about how to deal with issues that arise between the regulators and those being regulated. So I would encourage, in the spirit of openness that was just expressed…that not just media, but also local associations and groups that are invested and dedicated to the future of Mendocino County can also have access to this important tool.”
Curtis maintains that the ordinance is legal. The California Public Records Act does not authorize the fees that are covered by the new ordinance. However, he told the Board that “The Public Records Act comtemplates that the charges might be authorized by other statutes. Specific to counties, there is a mechanism where fees may be charged by statute if the Board chooses to an elective ordinance as long as those fees do not exceed the actual cost of the service to be provided.”
Maxell didn’t buy any of the arguments. “It seems like the County is just creating more and more layers of staff time and complications on something that is actually fairly simple under California law,” she told the Board. “So I might be able to be eligible for the fund, but someone like Michael should be, too.”
