Public Better Off Being Ignorant Says City Attorney & School District
Opinion
Emeryville's City Attorney has ruled that documents in the possession of the City and the School District outlining meetings of public officials that took place behind closed doors will not be made public according to a letter recently received by the Tattler. The City Attorney, Michael Biddle, ruled that the release of the documents would harm the public now and that the public would be further harmed later because government officials would not be able to engage in "robust" behind closed door discussions necessary for good public policy formulation.
One of the documents, a major traffic study regarding
the new Emeryville Center for Community Life (ECCL), was requested by the Tattler in April from
both the School District and the City. Both refused to provide the document in
response to a
California Public Records Act request and as a result Emeryville
residents can now only guess what public officials know about the traffic impact
that will be caused by the ECCL that officials are unwilling to share with the
public.
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City Attorney and interim City Manager
Michael Biddle (on left) with recently retired
City Manager Pat O'Keeffe |
More recently, in April, we saw the School District back
before the City Council requesting that it be exempted from another
environmentally-friendly requirement that it found bothersome, the General
Plan’s requirement that there be a bicycle and pedestrian path along the
western property border of the proposed ECCL site. While this 3-2 vote of
the City Council preserved the path in the City’s General Plan, none of the
most recent ECCL designs show any intention by the District of actually building the required path.
With the School District’s record clear, the Tattler has
decided to watch carefully the District’s compliance with the California
Environmental Quality Act (CEQA) as it proceeds with the ECCL design and
construction. On April 11th the Tattler wrote ECCL project director, Roy
Miller, requesting all Environmental Impact Reports related to the planned
ECCL, all CEQA notices, and to be placed on a list of “interested parties” to
receive all future CEQA notices. Mr. Miller replied that such documents were
not currently available and would be available at the District office once “they
have been prepared for public release”, presumably after having been scrubbed clean.
However, we were surprised a few days later with the release of the
monthly Progress Reports, dated
March 1 and
April 1, prepared by the City’s Building & Planning Director, Charlie Bryant, which
each describe the School District providing the City with a copy of a traffic study
for the ECCL project, and the City’s Building and Planning department
responding to the District with comments. The Progress Reports reveal no details of the traffic study.
If the earlier request for CEQA-related documents was not
clear enough, the Tattler again wrote to the School District’s Roy Miller to
request a copy of this ECCL traffic study. For good measure, the City also
received a request for the same ECCL traffic study document.
After several days, lawyers for both the City and the School District flatly refused the Tattler’s request for Public Documents. City Attorney Biddle responded on behalf of the City that the traffic
study was a “draft” not subject to the Public Records Act. Mr. Biddle’s letter
claims that “the public interest in withholding those records clearly outweighs
the public interest in disclosure,” citing a California Supreme Court decision
called
Citizens for a Better Environment v. Department of Food and Agriculture.
Phony Case Law
Readers might find it as amusing as we did to read the court
opinion cited by Mr. Biddle (in the link above), because what the Court actually decides in
that case is that the documents at issue have
to be disclosed to the extent the document contains factual material and
that only the expressions of opinion have to be redacted. So, clearly this top
secret ECCL traffic study is either entirely a work of opinion, and therefore
not subject to disclosure, or a work containing factual material that the City
and School District are improperly withholding from the public. This leaves one
to wonder what value a traffic study would have to a CEQA process if it were
made up entirely of opinion and contained no facts on which to base those
opinions. Leave it to our School
District to break exciting new ground in purely fictional traffic studies! Bravo! The Tattler expected nothing less.
Mr. Biddle also argued that the documents requested were
“deliberative materials necessary for robust agency discussion” and therefore
subject to an exception to the Public Records Act intended to foster “robust
policy discussions.” This is what the Tattler has always found to be true of both
our City and School District. They never shy away from a “robust” policy debate…
just so long as the public isn’t included. If we're allowed to listen in, presumably the talk becomes wimpy and feeble.
This City and this School District, fearful as they are of transparency should come clean with regard to this withholding of documents. We ask again, are these environmental documents for the Center of Community Life factual in nature? If so, the City Attorney's own citation requires their release to the public, by his own reckoning he must make them available. And in that case, Mr Biddle and the School District is wrong, for they are harming the public more by withholding these documents than by releasing them to the rightful owners, the public.
