On July 12, 2022, the Board of Supervisors enacted Ordinance 4507 establishing a fee structure to be paid by those requesting public records to “reduce the impact to local tax dollars from Public Records Act requests that confer a primarily private benefit. such as requests made to further commercial research, private litigation, or similar enterprises.”
During board discussion of the ordinance, 5th District Supervisor Ted Williams described abuses of the public records system in which county staff were working on behalf of “out of area businesses” providing information to “generate mailing lists to sell products.”
Members of the Mendocino County press corp pushed back on this proposal citing accountability and transparency laws that compel government bodies to carry the burden of availing public documents to any party, regardless of the requester’s intent.
Multiple board members expressed their support for local media entities and directed County Counsel Christian Curtis to establish a grant that would essentially pay the fees of local media organizations submitting public records requests in their efforts to inform the public.
On Tuesday, August 16, Counsel Curtis provided an update to the board about this carve-out for local media. Curtis told the board the County is working on a vetting process to determine which media entities would be provided this funding. At this point, the criteria to determine a media organization’s eligibility are vague and a more specific proposal is scheduled for discussion on September 13.
Essentially, Mendocino County officials are tasked with determining which media entities qualify for financial support.
The media remains the only carve out in this new fee schedule. This financial relief does not apply to a wide range of advocacy groups in Mendocino County representing an array of interests such as cannabis and the environment. These organizations often utilize the public records request system to understand local government’s actions and policies related to their interest.
Even broader, Mendocino County residents must now pay various fees for the documents made possible by their very own tax dollars. One of the core principles of America’s democracy is a government made accountable and transparent to the public. Under Ordinance 4507, if you want to audit your local government, you have to pay to play.
Public Records are for Everyone, Not Just the Media
Public records are also the domain of the everyman, not just the investigative journalist or the advocacy type.
If new construction is popping up in your neighborhood, records requests from Mendocino County’s Planning and Building Services will provide information about the project. If you want to know what sort of herbicides or pesticides are being sprayed at the vineyard across the street, that information can be accessed through the County’s Agricultural Office. If you are seeking closure after the sudden death of a loved one, you can request a coroner’s report from the Mendocino County Sheriff’s Office.
The California Supreme Court cited access to public records as an essential tool for the citizenry to hold its representatives accountable: “in order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.”
Now, in Mendocino County, the public has got to pay up before holding their government accountable.
The Public’s Right to Public Records
In 1968, the California State Legislature passed the California Public Records Act, signed into law by then Governor Ronald Reagan. In essence, the CPRA requires government entities to disclose public records upon request, unless exempted by law. The legislation asserted that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” The CPRA was “intended to safeguard the accountability of government to the public.”
On August 16, 2022, Kate Maxwell, the publisher of the online newspaper The Mendocino Voice told the Board of Supervisors Ordinance 4507 “violates my understanding of the California Public Records Act.” Maxwell cited conversations with press advocacy groups who saw these sorts of fees as an affront to Californians’ right to “free and accessible oversight” of their elected officials and government agencies.
When asked if Ordinance 4507 did conflict with the CPRA, County Counsel Curtis said the law allows for fees made by statute as long as they do not exceed the actual cost of the service to be provided.
The CPRA does allow for government entities to charge the public for the costs encumbered by duplication of the requested documents. Mendocino County’s newly adopted fees fall outside of the duplication domain.
David Loy, a former attorney for the American Civil Liberties Union, the legal director of the First Amendment Coalition told us Mendocino County’s ordinance is not legal within the bounds of the California Public Records Act. One aspect of its illegality is the county considering the motivation of the records request, specifically attempting to weed out commercial interests attempting to gather data. The CPRA compels government agencies to treat all public records requests equally.
Loy recognized the CPRA gives room to county governements to augment fees based on the cost of retrieving requested documents. Loy said Mendocino County’s fee structure of charging falls outside of the CPRA’s boundaries, specifically charges associated with county employees searching for documents, reviewing them, and redacting them.
What Do These Fees Look Like?
As of now, unless you are a member of the local government-certified media, you will be charged for any public documents you request.
The adopted fee schedule states “The first full hour of time expended on all requests of any one requester each month shall be provided free of charge.”
The newly established fees that will be paid by a document requester fall under three designations:
- Duplication Fees- these will be encumbered when a public records request requires duplication of said records.
- Search Fees– These fees are accrued when a public records request does not “reasonably describe a specifically identifiable record”. Requests that ask county employees to expend time to “locate, retrieve, provide, and refile” the records will be charged $20.00 for each hour of time.
- Specialized/Search Review Fees– If the documents requested require any sort of review by county employees to redact information or determine if it is appropriate for public release, the requester will be charged $150.00/hour. If a Department Head or the County Counsel determines a non-attorney staff member could adequately complete that process, requesters will be charged $50.00/hour.
If a records request fee exceeds $50.00, the county will provide an estimate to the requester, and payment is required before the county will begin to gather the requested records. If the original estimate and fee result in an under or overpayment, a refund or more fees will be reconciled when the records are provided to the requester.
Which Local Media Will the County Consider Legitimate?
Another central question about this media exception is how the County of Mendocino will determine which media entities are eligible for the financial support.
Mendocino County Counsel Christian Curtis said on Tuesday, August 16, “I think it is going to be easy for media organizations that are well established” such as media entities with an FCC license or a newspaper of general circulation. This would include a radio station such as KZYX and legacy periodicals throughout the county such as The Ukiah Daily Journal and the Fort Bragg Advocate.
But, what does “general circulation” mean? The Anderson Valley Advertiser is a renowned part of the local journalism landscape with an online presence and a weekly print publication circulated in various businesses throughout the county. The Independent Coast Observer, based out of Gualala, is a weekly newspaper covering life on the Mendonoma Coast. Do these organizations pass the “general circulation test?”
Curtis moved onto online news organizations, such as ours or the Mendocino Voice. He characterized the vetting of new media hosted on the world wide web as more “challenging” than radio or print periodicals.
“Knowing the media base in this county, knowing how rural we are, I think we are going to want to include some internet media providers as well,” County Counsel Curtis told the Board of Supervisors.
News consumers in the Emerald Triangle are keenly aware of online journalism’s role in bringing information to our local news desert. As small-town, brick-and-mortar, print publications went under or were bought up by media conglomerates, reporters moved into the online space and filled the gaps.
Curtis is working on establishing appropriate criteria for vetting these online entities. This criterion must be specific enough that a bad actor such as a “corporate data collector” could not start a Facebook page to essentially pose as a news entity to circumvent the new fees. Also, this criterion must make space to allow “legitimate [online] publishers” access to the same financial subsidies as Mendocino County’s legacy media.
He noted on multiple occasions that the criteria must be viewpoint neutral and not an assessment of a news outlet’s quality or the accuracy of the information. Instead, he proposed “circulation” as a fair metric showing the news outlet reaches “a wide enough audience to make a worthwhile investment of public funds.”
Michael Katz, the Executive Direction of the Mendocino Cannabis Alliance, told the Board of Supervisors on Tuesday, August 16 that like media entities, public records are an essential tool in his work advocating for cannabis cultivators
Katz described continual staffing shortages at the County of Mendocino as hindering his ability to access information via dialogue with staff. Instead, on multiple occasions, the only way he found the county would respond to his inquiries was after submitting a public records request.
He argued that “Members of the local community, not just the media, but also local associations and groups that are invested and dedicated to the future of Mendocino County, should also have access to this important tool.”
These criteria will be finalized by the September 13 Board of Supervisors meeting after which media organizations can begin the application process.
Are We Entering an Era of State-Sponsored Media in Mendocino County?
Media outlets that are influenced financially or editorially, directly or indirectly, by a government entity fall under the designation of state media, government media, state-controlled media, or state-run media.
Kate Maxwell of the Mendocino Voice told the Board of Supervisors that these sorts of fees could have a “chilling effect” on the local Mendocino County press where most newsrooms are doing the work on a shoe-string budget.
In response, 3rd District Supervisor John Haschak and 5th District Supervisor Ted Williams stated they were resolute supporters of local media entities and the freedom of the press.
When presented with the potential of these fees impairing the local media, County Counsel, and the Board of Supervisors proposed the public records request grant specifically for the local media. They argued this financial support would allow local journalists to continue their work without the financial burden of the newly established fees.
But, what happens when a media entity is financially supported by a government entity? One could argue that this financial reprieve to local media will conflict with the independence needed for balanced journalism. Is the only solution to maintaining independence taking on the financial burden of the fee schedule? Considering the tight budgets of Mendocino County’s media landscape, can anyone afford to flout these funds provided by the county?