Jan. 7 2013 12:00 AM

Bob Filner's flawed understanding of the California Public Records Act

filnerJan2013
Bob Filner introduces his new staff
Photo by Kelly Davis
    During his campaign, Bob Filner promised a transparent administration, announcing that he planned to hire former City Councilmember Donna Frye to be his director of open government. Frye is the vice-president of the board of directors for CalAware, a government-transparency watchdog organization, and while she was on the council, she was responsible for a number of changes in how the city discloses information to the public. ---

    On Dec. 28, U-T San Diego reporter Craig Gustafson wrote a story about his attempts to find out whom Filner had hired for staff. His first request, he wrote in the story, was made verbally to Filner's chief of staff, Vince Hall, on Dec. 6. Hall, Gustafson wrote, said he'd get him the information the next day. Gustafson reported that he asked Filner, too. And, a week later, he followed up with two written requests to Filner's press secretary, Lena' Lewis. After no response, on Dec. 27, Gustafson sent Lewis an email invoking the California Public Records Act (CPRA). Lewis responded that she would put his request "at the top of my list" for when she returned from vacation on Jan. 2. 

    Today, Filner held a press conference to introduce his staff. There, he offered to school reporters on the CPRA. Or, he said, "since you're all such good researchers," we could figure it out on our own. Regarding Gustafson's requests for staff information: "As far as I know, I didn't have any Public Records Act requests, by the way, on this issue," Filner said. "A question from a reporter is not a public-records act request.... Just because you asked a question doesn't make it a legal thing that I have to deal with."

    Not true. While a question like, "Does the mayor have an opinion on the whole Charlie Sheen / Antonio Villaraigosa photo thing?" isn't a public-records request, a request for the names and salaries of public employees is, according to a 2007 ruling by the California Supreme Court. And, contrary to what Filner told Gustafson, a request for that information can be made verbally. 

    The California Public Records Act does not require a request for records to be in writing.

    And

    The Act requires that records not exempt from disclosure be made available "upon a request for a copy of records that reasonably describes an identifiable record or records?"

    Gustafson sent me the emails he sent to Lewis:

    From: Gustafson, Craig 
    Sent: Thursday, December 13, 2012 1:17 PM
    To: Lewis, Lena
    Subject: mayor's staff

    Lena',

    I'm doing a roundup of changes in City Council staffing. I'd like to include the Mayor's Office hires. Can I get a list of the mayor's staff? That was promised last week, but I still haven't seen anything.

    Craig


    And the next day:

    From: Gustafson, Craig
    Sent: Friday, December 14, 2012 12:23 PM
    To: 'Lewis, Lena'
    Subject: staff?

    Lena',

    Any chance I can get the mayor's staff list? I see on Twitter that Irene McCormick was hired to be director of communications. Filner keeps saying he's going to be open with the press, but he won't even confirm who's working for him. What hires has he made? I've asked several times now.

    Craig


    Filner claimed at the press conference that Gustafson asked only, "Do you have your team ready?" 

    "And I said we're not ready yet," Filner said he told Gustafson. "Several times we did have press conferences scheduled for this. I was going to announce what we had. The first time was the Connecticut shooting, so we had to change that, then the holidays interfered."

    Indeed, Filner had a press conference scheduled for Dec. 14, the day of the Sandy Hook Elementary shooting. Billed as "City Travel Moratorium," the press conference was cancelled. Dec. 14 was the day Gustafson made his second request. So, the information was apparently ready for a press conference, but not ready to give to a reporter.

    "And the Public Records Act request gives you some time," Filner told the media today. "I have 10 days or something. The first time the PRA came up was Dec. 27, and [on] Dec. 28 was an article that accused me of violating the law."

    According to CalAware's Guide to Journalism Law in California, "Delay is allowed only to resolve good faith doubts as to whether all or part of a record is accessible by the public..... Access is to be provided 'promptly,' not put off for 10 days."

    Filner finally admitted that he could have released the information sooner, but wanted to show off his new staff all at once.  

    "I could have said at any point who we hired and what," he said at the press conference, "but I wanted to give the full team, as you saw today, so you have a picture of what I'm trying to do as mayor. That was my only intent in delaying it."

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