Op-Ed: Is Local Government Hiding the Sunshine?

, a national initiative aimed at open government and freedom of information, was observed March 13-19. Some local governments and the press celebrated the week by discussing the importance of government transparency and the laws that give citizens the authority to keep tabs on elected officials.

California has several laws that grant its citizens a set of basic rights to know. The Brown Act, the California Public Records Act and Proposition 59 are great laws that outline rules for transparency in local government. The current laws set only the minimum requirements for transparency—and yet, there are Encinitas officials who scoff at these laws.

Over the last six years, I have witnessed the city use a wide range of schemes and techniques to cloud routes for transparency and circumvent the spirit—and the letter—of the sunshine laws.

Yes, most of the time, the city follows the law. Most of the time, there is no reason for the city to manipulate information being made available to the public, but the weather forecast for City Hall is always a chance of fog. Don’t assume sunshine. If you are asking about something sensitive, expect the marine layer to penetrate local government.

The biggest problem is that it's really tough to know what the city has withheld from its citizens. The city takes advantage of the public’s trust. There are many examples of things that have been withheld from the public that are known to have existed.

Here is a small sample picked from a large pool:

Secret Open Government Handbook

The city’s management handbook, which outlines how staff should handle public records requests, is an enlightening place to start. It took me more than six months of persistence before I was able to get the city clerk’s office to allow me to see the document. Ironically, making it difficult for me to see the document was the opposite of what was outlined on Page 1 of the management handbook.

In violation of the California Public Records Act, the city clerk’s staff also would not initially allow me to make a copy of the handbook.

Document Destruction

In another incident, a city planner had provided me a copy of a directive that two senior staff members had given him about an engineering question regarding a neighbor’s development. The note was evidence that the neighbor’s project would violate the municipal code if there were no changes to the plans.

Later, when the plans did not change, I did a records request for a set of documents that should have included the directive. The document was not included in the city’s response. Had I not already known of that particular document's presence, I would have assumed I got everything.  

I would later press the city on the vigor of their efforts to find all related documents, and I was assured that I got everything. That changed when I told the city clerk I knew of this critical document. The clerk then admitted that the document had existed but had been destroyed. She refused to put the explanation into writing, as was required by law.

These examples are small potatoes—they’ve done it on the big projects, too. Evidence of sunshine law violations are now sent to me in a stream. Every time, the resident acts like they just discovered the truth about the Easter bunny and are simply stunned at the lack of response by the city’s management, including the City Council.

The California open government laws most notably lack mechanisms for enforcement beyond the court system. Until structures are put into place that ensure reported sunshine law violations are reviewed, there is nothing a citizen can do other than file a lawsuit to force the city to comply with the law. There is nothing that can be done to make Encinitas follow the spirit of the law.

That brings me to my third example.

Roads Report

The city refused to share its road maintenance report with the public. The report details how the council had been misleading Encinitas residents about the council’s stewardship of the city.

When I requested a copy of those reports, the city said no. The city manager said his staff was making changes to the report. The city has provided no evidence that changes were being made. Why would he want to keep things secret?

The report was already considered finished by the consultants who authored it. Maybe the city manager really did intend on changing—or manipulating—what the consultants wrote.  Much more likely is the city manager was going to try to keep a lid on the streets maintained report, just like the citywide traffic study was withheld from the public in an effort to manipulate election results, according to the city’s traffic consultant.

The report was years out of date when it was finally released, but only under the pressure of a citizen lawsuit. Yes the city had a good reason to keep it secret. The report was embarrassing.

Both then-mayor Dalager and the council were asked to intervene and allow the street maintenance report to be released. Dalager didn’t respond and the rest of the council offered more delays and zero assurance the specific documents I was requesting would ever be released. 

After trying to get the city to reasonably explain how they legally justified withholding the document from the public, it became clear that the city was not interested in clarifying their reasons. The city cut off communication when they started getting asked tough legal questions. 

The law should not be a secret, so I asked a judge to explain how the city could legally withhold a report on the condition of city streets. Then, I filed a lawsuit for the release of the documents. The city quickly released the documents and that is when we confirmed that the document had been completed, printed and bound before the city denied the public access to its contents.

The city manager had told the press he was keeping the document a secret because he didn’t want the public to be confused if for some reason the final report contained an error. The only thing confusing is that the city manager paid the consultants in full for a document he was afraid to show the public.

Yes, the whole thing doesn’t hold any water. Yes, they can get away with this because there are no internal enforcement measures in the city.

California has open meetings and open records laws for a reason—to keep the public's business before the public. Citizens have the right to know what government officials decide on the public's behalf and how they came to that decision. It is now up to the citizens to decide if they want to live in a city that embraces sunshine laws.

If you would like to join the effort to increase transparency in local government please email encinitasproject@gmail.com.  The Encinitas Project is currently reviewing various policies to be taken directly to the voters if the council continues to fail to act.

With your help, the forecast for Encinitas will be mostly sun.

Kevin Cummins is raising his two children in Encinitas and is a co-founder of the , a broad-based coalition of proactive residents. He is also a contributor for The Leucadia Blog.