Open Government Ballot Measure To Go Before San Diego City Council
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January 15, 2014 1:52 p.m.
Donna Frye, President, Californians Aware
Terry Francke, Executive Director and General Counsel, Californians Aware
MAUREEN CAVANAUGH: This is KPBS Midday Edition, I am Maureen Cavanaugh. Our top story on Midday Edition is about a move to making more information from the city government available to the public. Donna Frye presented a proposed ballot measure to the city council today. If approved by voters, it would change the city charter to require more government records to be open to the public. The measure will fulfill the goal Frye had hoped for but was unable to achieve. I would like to welcome Donna Frye and Terry Francke. Welcome to the program. If the city council gives the go-ahead, this will not be the first open government chartered that San Diego has been asked to vote on. You introduce one when you are on the city Council, is that right?
DONNA FRYE: That is right. That was in conjunction with Terry. I will defer to Terry to talk more about what it did.
MAUREEN CAVANAUGH: That was the first that we voted on and we voted it in, going on at the state as well.
TERRY FRANCKE: And married a ballot proposition which added to the California Constitution to scrutinize what is going on in government meetings and meetings of government bodies to get access to the writing and records of government officials as well as government agencies. This proposal goes a step further by looking at all of the areas in state law effective local agencies the option of saying either gas or no when someone asks for record. These are often thought of as exemptions from the public records act, but they actually give the government discretion whether to release are not. Most government officials treat the exemptions as a flat prohibition. There is an exemption hears and we will not give it out. The responses of government to public records requests are peppered with this kind of idea that we will not even consider to make this public or not. The spaces we can keep it secret so we will. This is what is the main focus of this proposal to require the city council on a regular basis to look into city policy and ask if we're unnecessarily denying access and try to minimize overtime the automatic reflexive pattern of saying no when you could say yes.
MAUREEN CAVANAUGH: Were these changes the kinds of things you're hoping to accomplish is the director of open government under Bob Filner?
DONNA FRYE: Unfortunately what I found is that this helped me identify that the problem still existed. Relying on the goodness of elected officials does not serve the public. How do we fix that and put that into a charter so it's permanent and we don't have to depend upon the kindness of strangers or whoever happens to be the mayor took this gives the public some power, as well as feeling better about the fact the elected officials are not going to be able to run the game anymore.
MAUREEN CAVANAUGH: Give us an example of a problem that people may find it too now gaining access to government records.
DONNA FRYE: I think almost anyone asked for a government and record has run into a problem, but safe you want information about how the city does this, and instead of getting a response you generally get something to the effect that they do not have to provide the information to you. They do not tell you why, they do say that they have an exemption and they don't have to turn it over. Or you ask for a public record and there is where it is so heavily redacted it is nonsensical. Or you get a response it is policy not to do that. They never get a reason why.
MAUREEN CAVANAUGH: If this is indeed approved by voters, they will have to write and submit something in writing as to why they will not give you this in particular public record, why is it important for them to have to justify withholding records?
TERRY FRANCKE: For one thing, not doing so does great injury to public confidence in the integrity and transparency of government. If you submit public records requests and they say that the information requested is protected under the policy exemptions and they give you code citations, that can become discouraging very quickly and can lead to some cynicism about how straight government is being with you. It is also, we often find that government and people who make decisions on these things are either misreading their requests or somehow turning it around and bringing up exemptions that have nothing to do with the information you're seeking. It operates as a check to say you do not have to explain what harm would result if you release this information. The code section tells the public nothing, and it leads to demoralization and cynicism.
MAUREEN CAVANAUGH: When you were on the city council did you have difficulty getting documents that you requested?
DONNA FRYE: Yes, I had to file a public records act request with the city attorney's office. I blew the whistle on documents that should have then provided to the public and were not. I also was subjected to a gross abuse of power. They would deny you access to documents and slow you down. It's an ongoing power play with folks to say if you do not behave a certain way, we'll make sure you do not have access to certain information.
MAUREEN CAVANAUGH: It's interesting in reading the new open government ballot measure and what he would do if it passes, it would open up things like email and text messages and some city employee communication. We are seeing these kinds of text messages in the headlines today. Is that the kind of thing that would be available just to see city employees texting each other? Would have to be requested, to see what is going on in the way you have awarded a certain contract, would you be able to request text messages from or between city employees?
TERRY FRANCKE: Yes and the problem is, not that ñ email is clearly defined by the state as subject of public records but there are media coming along that are not found in the definition of public record in state law, so this tries to anticipate that area of technological change and say if it's in writing then it is subject to disclosure. This does not mean that everything is subject to disclosure, you still have the same exemptions and you still have protection for privacy and so forth, it just means that the city cannot say twitter messages are not public information.
MAUREEN CAVANAUGH: I see.
DONNA FRYE: What we're trying to do is make sure that the public feels that the decisions made by elected officials, that there is not a collective concurrence in advance of the meeting. You could be sitting in a meeting where people have electronic devices and forming collective concurrence, I'm using this hypothetically. If you requested collect copies of those text messages, it would reduce the type of behavior if people performing tax tried to perform at collective concurrence they know that they have to turn those text messages in.
MAUREEN CAVANAUGH: With this measure be retroactive?
TERRY FRANCKE: Good question, generally speaking changes in the law are prospective and they look forward. Once in a while, special circumstances can mean that the landscape has changed so much that we have to read it back into these areas that were not covered before.
DONNA FRYE: The city attorney's office have generally said that text messages and things of the like are in fact subject to public record. I think that people should not depend upon that. We do not have to worry until the walk law takes effect, they should be doing the right thing right now, because text messages and any communication is subject to public record.
MAUREEN CAVANAUGH: Speaking of city attorney's office, they have troubles with the proposed open permit charter change, we have posted their opinion on her website, one of the criticisms is that it is easier and cheaper to make this policy change then to make a charter change. What is your response to that?
TERRY FRANCKE: Changing the charter provides stability over time and does not open up the policy to changes depending on a change in the majority and the orientation of the city council. It also sets a very bedrock principle for guidance to all of the public that if you want to know what is the most fundamental San Diego policy on this aspect or that, but to the charter and that is something that the people themselves wrote and it is not the product of city council voting.
MAUREEN CAVANAUGH: As you know, San Diego city charter is getting scrutiny now after this year, to see what is applicable and what is out of date and I know that David Alvarez proposed changes to open government as a part of that review, by separate this from the review and not waste until the review is completed?
DONNA FRYE: We do not know how long it will take and I think based on our last year and seeing what we have seen, I do not think open government and having what I consider to be some of the most basic rights of the public to the address this as soon as possible. We have seen what happens, this is something that the public supports and given the unstable environment I think this will go a long way in providing some reassurance to the public that they could have some faith and trust in the government.
MAUREEN CAVANAUGH: I know you support David Alvarez, he is behind in a recent poll, what you think is going wrong in the campaign?
DONNA FRYE: First I will step aside and say that we do not do candidate endorsements. Now I will put on my hat speaking to you as a private citizen, I'm not a supporter of polling. I think it's interesting and it provides a snapshot in time, but I recall the polling that was done when Filner was running against Carl DeMaio, and believe the same or similar polls from the Union Tribune showed Carl of the head of Bob by 12% and it actually did not work out that way. What do I think is wrong, I think that sometimes people need to focus less on pulling and more on actual issues and making sure that we can get people out to vote and at the end of the day that is what it is. Yes votes and making sure that people sell the support and will go to the polls. I don't think there's anything wrong with the campaign and I think what he did today in bringing this forward and show leadership to get people to support it including the person running against him, I thought that was good.
MAUREEN CAVANAUGH: Donna Frye and Terry Francke, thank both you very much.