Encinitas Open Government Update

by Gerald Sodomka

Last night I was the only one to speak on the council discussion on the city's appeal of the Cummins ruling. I asked to put a discussion of a Sunshine Ordinance on the agenda.  Council agreed to revisit email retention and to get a clearer definition of a "draft."

Each council member spoke in turn about why they supported an appeal:

Bond: the city has one full time staff member to chase requests;  law has had unintended consequences; can lead to wild speculation and rumors.

LB translation: Sharing information with the public is a burden and we should do all we can to limit access to public information. Why not put all the documents on line? The city wouldn't need one full time person for records requests if they just changed policy. Silly me, that would mean giving up control and monitoring of information flow. Scratch that idea.

Stocks:  clouds and confuses the issue;  wanted to invite a full panel of judges to decide this issue;  not precedent setting;  may get sued again.

LB translation: We are going to continue withholding public records and we are going to continue to do so without adequately explaining why. A sunshine ordinance and sunshine commission could dramatically reduce the chance of a lawsuit but that would mean becoming more transparent (Stocks proudly fought against a Sunshine Ordinance).

The panel of judges thought the case was so weak they didn't even want to waste time hearing it.

Houlihan:  wanted a bright line;  seven months delay, must manage work flow better in future;  only minor changes in draft.

LB translation: I want want an activist judge to create a sunshine ordinance for me because I don't want to do it. I also want to have better project oversight but I don't want the public to have access to documents that can allow them to monitor project progression.

Barth: wanted a judge to decide on first challenge;  clear decision of judge made second appeal unnecessary.

LB note: Expensive way to make a point. She appears to be the only one who reads and understands the law, the ruling and the court filing. Don't think so? Can anyone say what the city's argument was for not releasing these reports?  (That is, the March 2010 report and the December 2009 document.  Both of those were refused by the city, and a general argument doesn't hold water, it has to be something specific to these documents. Why couldn't THESE particular documents be released?).  

Gaspar: wanted the judge to create a bright line like Maggie.

LB translation: Just like Maggie she doesn't seem to understand the city's (thus, her own) position in court. Contrary  to what city staff wanted everyone to think, the city did not claim the draft document exemption (because that was hogwash).

Read, "I don't yet realize that a bright line means giving up some of the discretion the state law gives me and once I do I'm going to have to flip-flop on this position."

We could be wrong, but have we seen Gaspar promote and act to foster an open government? All we've seen from her so far is a invintation to sue the city over her games with public policy related emails. Dear Maggie and Gaspar, do you have any suggestions for a policy change?

Did Maggie and Gaspar really want the Judge to tell them that a document that was reproduced, bound, delivered, titled FINAL and followed with an invoice for a final report should be considered a draft. I can't wait to see what they suggest for a policy!!! Because people keep forgetting, the city attorney did not claim the draft document exclusion in court (because it was B.S. to call it a draft).

If my summary sounds confusing, it's because the discussion was rambling and confusing.  Except for Teresa, each council member was clearly on the defensive.  None made a good argument for what they did.

I have to count it as a success for open government.