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Tuesday, May 14, 2013

School District and City Withhold Public Documents from Tattler & the Public

Public Better Off Being Ignorant Says City Attorney & School District

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.
City Attorney and interim City Manager
Michael Biddle (on left) with recently retired
City Manager Pat O'Keeffe 

The Emeryville Center for Community Life, still years from being completed, has recently disappointed residents that hoped it would live up to the environmental promises made by both School District and City officials.  First, this February we saw the School District request special permission to be exempted from the City’s LEED environmental standards for Emeryville public buildings. In a 3-2 vote, the City Council allowed this environmental promise to be broken.

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.


  1. Thank you for your efforts to secure documents through the California Public Records Act.

    To whatever extent the city and school district are allowed robust discussion behind closed doors, our need for a robust local press becomes even greater. Thanks for shedding light on the darkness in city hall and the school district.

  2. The city doesn’t care about any “Traffic Study”. I’m sure that any study will say that the intense traffic caused by the new development of ECCL will be detrimental to San Pablo Avenue and the surrounding residential streets. There is no way to mitigate this type of traffic especially when they have already approved the EBI private school across the street to have up to 400 students and 50 staff that has already intensified the traffic in the area. So, just using common sense, when you add the 400 private school kids (who are driven to school daily) and the 1600+ students and visitors per day at the ECCL site, at the peak time slots of 8 to 9AM and 3 to 5PM, we will be seeing a traffic quagmire on a daily basis. On top of it all, in addition to allowing neighboring sites so close to each other, each producing heavy traffic at peak periods, they have also allowed exceptions for parking requirements. ECCL will be allowed to have ½ the required parking spaces (they are even using street spaces to boost their numbers) and the private school of 450 was required to have only 27 parking spaces. When both of these projects are up and running and at capacity in about 4 years, you will find no parking on San Pablo Avenue (which will be detrimental to the already barely surviving storefronts) and virtually no available street parking for the surrounding residential streets and its’ residents. The city knows about this, but in my opinion, they don’t care.