The First Amendment Coalition has reached a highly favorable settlement in a PRA suit against Marin County for records relating to a stream conservation ordinance. The outcome should serve as a warning to local governments proposing to withhold records on grounds they reflect how official decisions are made.
FAC and its co-plaintiff, environmentalist David Schnapf, will receive over 700 pages of records, including multiple drafts of the ordinance and notes taken by members of the Board of Supervisors in closed door meetings on the ordinance—all documents that the county had claimed were off limits to the public. In addition, the county agreed to pay $40,000 for plaintiffs’ attorney’s fees. FAC and Mr. Schnapf were represented by San Francisco attorney (and FAC Board member) Karl Olson.
The case grows out of a controversy about development near a stream that is a habitat for endangered salmon. Behind-the-scenes maneuvering on the Board of Supervisors yielded an ordinance to regulate stream side development. Criticized by environmentalists as providing more protection for property owners than for fish, the 2013 ordinance included a “poison pill”—an unusual provision requiring suspension of the measure in the event of a legal challenge.
FAC joined the PRA suit to challenge the county’s argument that, in withholding records because they relate to the supervisors’ “deliberative process,” or because they are “preliminary drafts,” it needn’t address the public interest in access to specific records. Although some courts have treated these as blanket exemptions, FAC has long contended that that is a mistake, reflecting an erroneous interpretation of a seminal Supreme Court decision issued in 1991.
In a tentative ruling in early June, Marin County Superior Court Judge Paul Haakenson sided with FAC and Schnapf. The court held that each document had to be considered on its own and that there was no blanket exemption for supervisors’ notes or preliminary drafts. “‘The deliberative process privilege does not justify nondisclosure of a document merely because it was the product of an agency’s decision-making process,” the ruling said. “If that were the case, the Public Records Act would not require much of government agencies.'”
Judge Haakenson noted that Mr. Schnapf had made a “focused” records request about documents shedding light on the “poison pill” provision which prevented the stream protection ordinance from going into effect, and that, “Whether the evidence shows no wrongdoing, or otherwise, the public interest here is in the public’s right to make this inquiry and see for itself.”
Although the tentative ruling did not end the suit, it directed the county to make further factual and legal arguments to justify the continued withholding of “preliminary drafts” and records relating to the “deliberative process.” This directive provided the basis for the parties’ negotiated settlement.
Plaintiffs’ lawyer Mr. Olson praised Judge Haakenson’s decision: “The ruling was a careful and scholarly look at the so-called ‘deliberative process privilege’ which displayed sensitivity to the public’s right to know how the government operates.”
Mr. Schnapf said the documents produced as a result of the settlement “should provide a road map to the evolution of the ordinance from the initial version prepared by the Community Development Agency to the final, weakened version” adopted by the Board of Supervisors. Mr. Schnapf also praised Judge Haakenson’s ruling as reflecting a willingness “to give real meaning to the ‘balancing test’ applicable to the many withheld documents.”
“The judge clearly saw that the County had done nothing to implement the balancing test – they barely even paid lip service to balancing,” Mr. Schnapf continued. “Thus, he made it clear that simply asserting that a document qualified as, for example, ‘deliberative process,’ was insufficient without a further analysis required by balancing.”
Peter Scheer, FAC executive director, said the case is important for “correcting a huge misconception among government officials who believe that a blanket of secrecy covers all records about how they make official decisions. The court in this case said NO.”
Scheer continued: “Judge Haakenson’s well reasoned decision makes clear that government officials must balance their interest in secrecy against the public interest in disclosure, and that they must do so with a focus on the specific records. The court’s decision, and the resulting settlement, will go a long way to restoring the presumption in favor of public access in our freedom of information laws.”
You can read Judge Haakenson’s tentative ruling here.
Here’s an article about the lawsuit that appeared in the Marin Independent Journal.
–Peter Scheer