Fees for public records unlawful, say transparency advocates
The Board of Supervisors recently passed an ordinance to charge up to $150 an hour for public records requests. The Board is considering a grant program for media outlets, but organizations advocating for freedom of the press cry foul.
August 30, 2022 — Multiple organizations that advocate for freedom of the press and government transparency signed a letter to County Counsel and the Board of Supervisors Monday afternoon, arguing that a new ordinance charging up to $150 an hour for public records is unlawful.
The First Amendment Coalition, the California News Publishers Association, and the Society of Professional Journalists Northern California Chapter’s Freedom of Information Committee argued that “the California Public Records Act does not authorize fees for locating, reviewing, and redacting records and no statute authorizes a county to impose fees not otherwise allowed by the CPRA.”
County Counsel Christian Curtis argued at the last Board of Supervisors meeting that the California Public Records Act does contemplate charges that “might be authorized by other statutes.”
The ordinance has already been passed, but the Board is now contemplating a grant program to subsidize media organizations, as long as they meet a certain definition. That definition has not been codified yet, but at its most recent meeting, the Board considered criteria like circulation, and how to make sure applicants qualify for the media exemption.
Annie Esposito, the former news director for KZYX, now runs a Facebook news site that might not meet the as-yet undetermined criteria. She said one of the reasons she didn’t give up on the site is that local newsrooms are shutting down all over the country. “They’re either closing the paper altogether, or they’re owned by some bigger entity somewhere else, and they’re firing their staff and downsizing…and as a consequence, all these wonderful local citizen reporters have cropped up to fill that vacuum,” she said. After expressing her gratitude for the current work of KZYX, she added, “To cover the whole county, a lot of different hands are needed, and we have many online one-person news departments, like MendoFever, and Danilla Sands, and they keep up on breaking news and stuff for people, and I use a lot of their stuff. I would hate to think that they would ever be barred from information, if they start making categories and hierarchies of who can and cannot have the news.”
David Loy, the legal director for the First Amendment Coalition, wrote in the letter that, while “The grant program cannot cure the defects of an ordinance unlawful on its face,” the advocates were submitting their letter to explain that any definition of media organization that the county settles on must adhere to the First Amendment’s standards. Loy wrote that, “If the County were to subsidize the public record requests of some but not all media, the financial burden on those ineligible for the subsidy would be tantamount to disparate taxation of disfavored portions of the press. Selective taxation and selective subsidy are two sides of the same coin.”
Curtis told the Board in June that public records requests were taking 20-30% of his attorneys’ time. But David Drell, of the Willits Environmental Center, thinks the real cost is in what he calls the slipshod maintenance of the records. “When Brent Schulz was the director of Planning and Building,” he recalled; “there was an issue over the records of cannabis applicants in the queue, trying to get their state licenses, and Brent Schulz said at the time, ‘it would take me five hours to even find an application.’ So if that’s a snapshot of how the county keeps its records, it’s no wonder. And if someone wanted one of those records and it took five hours to find it, that’s five hours of staff time.”
David and Ellen Drell have conducted local political research for years, and don’t balk at taking the county to task over ordinances they view as unjust. Last year, the Drells were at the forefront of a successful effort to repeal a cannabis ordinance known colloquially as Phase III.
The Public Records Act includes provisions that allow the public to inspect documents, and obligates public servants to be helpful in providing the records that people are looking for. Drell says that before documents were organized online, they seemed to be better organized.
“In the old days, you could go into an office, and you could ask for a file,” he described. “And they would hand you the file, and give you a place to sit, and you would look through the file, and maybe the file would have 200 pages of documents in it…there might only be two or three pages in it that you would actually want copied. So having good records available for inspection by the public could drastically reduce the time required for county staff to rummage through what appears to be poorly organized records.”
Esposito also thinks easier access to public information would reduce the need for public records requests. “Twenty years ago, when I was doing the news, you could call up a department head with the county or the state and talk to them directly,” she said. “Now you have to go through their PR department,” and talk to someone who is not a subject matter expert. “So they’re just tightening the noose around us, when they’re going to tell people who can and who cannot qualify to get government documents,” she concluded.
“Their attempt to fix it by giving media a grant, that doesn’t fix it,” Drell asserted. “Because the media is not interested, and is not really able, just because of time and energy, to be interested in all the issues that the public is interested in. And therefore, their requests for documents, and their reporting, cannot be encyclopedic, which is why the Public Records Act does not discriminate in any way on who is able to get material.”
The Board of Supervisors is planning to address the issue of the media grant at its regular meeting on September 13.