The Mendocino County Board of Supervisors is likely to rescind an unpopular ordinance that charged members of the public for staff time to fulfill public records requests. The Board went into closed session before lunch on Tuesday. But it wasn’t until the Supervisors’ reports at the end of the day that Supervisor Ted Williams announced that, “I want the Board and public to know that Supervisor Mulheren and I will be bringing a proposed action to the Board to repeal Ordinance 4507. That’s the Public Records Act Ordinance. We’ve asked for the soonest time available on the schedule.”
In February, Supervisor John Haschak requested support to rescind the ordinance, after attending a presentation for county representatives from all over the state. This made him reconsider his initial support for the policy, and now he thought the county had put itself at risk of significant legal liability.
The ordinance was supposed to cut down on the costs of complicated, time-consuming records requests. One private gardening supplies company requested the contact information of every cannabis farmer in the county, for marketing purposes. But David Loy, the legal director for the First Amendment Coalition, a free press advocacy organization, urged the Board to follow through on rescinding the ordinance for several reasons. “It violates the PRA (Public Records Act). It’s bad for democracy. It’s bad for transparency. Public records belong to the people, not just the wealthy. Any financial barrier to access is a barrier to full transparency that’s guaranteed by California law and the California Constitution.”
(For full disclosure, in August of last year, I, Sarah Reith and Matt LaFever, publisher of MendoFever, joined a long list of reporters and publishers from all over the region, between Humboldt County and the Bay Area, to sign a letter circulated by Kate Maxwell, publisher of the Mendocino Voice, arguing against 4507.)
Jim Shields, the publisher of the Mendocino County Observer in Laytonville, wrote multiple columns on the issue. And he researched a California Supreme Court case called National Lawyers Guild versus the City of Hayward, where the judge found that the city could not charge requesters for the time spent by staff to edit materials. Shields said he prepared a number of briefs and shared them with Haschak, who circulated them with the board and County Counsel.
“What happened here in Mendocino County with that ordinance that the Board of Supervisors passed last year,” he said; “It touched all these different facets of the Hayward case. And that’s why I knew it was a winner. And here you have County Counsel. I kept saying to the Supervisors, he’s got to be aware of this Hayward decision.” Asked if he knew if anyone was threatening litigation, Shields drew a deep breath and said, “Well, I was,” before laughing. “Well, yeah,” he added. “I said, it’s gonna cost you money.”
Matt LaFever alerted supervisors about a separate legal action that was being contemplated. The First Amendment Coalition was considering litigation on behalf of the Mendocino Voice, the Willits Environmental Center, the ACLU, and the Northern California chapter of the Society of Professional Journalists.
LaFever is a member of the SPJ and a taxpayer, which gives the organization legal standing to bring a case on his behalf. Taxpayer standing means if you are in a jurisdiction with an unlawful ordinance, you can bring a suit to demand that the jurisdiction stop enforcing it, because it’s an inappropriate use of public funds. He said the SPJ called to suss him out as a possible complainant about 4507. (LaFever regularly publishes my work.)
After hearing from the SPJ, LaFever said, “I then, out of sort of a good faith move, approached Supervisor Williams and Supervisor Haschak, and let them know that this legal challenge was going to be coming forward. And rather than cost the taxpayers more money and have to defend it in a court of law, is there a way that we can try to de-escalate this now? And it might be working.”
Haschak, who brought the issue to closed session on Tuesday, didn’t name names. But he didn’t contradict Shields or LaFever. In an interview the day after the meeting, he said, “I did get a call from a person who said, hey, this organization is going to come at the county with everything they have. And so I did take it to County Counsel and say I wanted to have a closed session meeting to talk about this. There’s certain cases that really show that the ordinance was on what I believe was shaky legal ground. And that we didn’t want to go there. There were also some comments in the last Board meeting that we were doing this because of the cost of redacting information. And there’s a case of the National Lawyers Guild versus the City of Hayward, which says specifically you cannot charge for redacting information like that. So I think the Board was digging a hole for itself.”
The county is still facing legal liability, if supervisors don’t follow through on their intention to rescind. Yesterday, David Loy of the First Amendment Coalition, and Chessie Thacher of the ACLU, sent another letter to County Counsel Christian Curtis and the Board, saying they will “proceed with litigation” if the Board does not calendar the motion to repeal the ordinance for the upcoming May 9 meeting. We reached out to Curtis yesterday, but did not hear back by press time.
Williams insisted that the threat of litigation did not play a role in his decision , saying that, “The county receives threats of litigation every day of the year. We can’t make decisions based on threats.” He still believes the county would win if the case went to court, based on an opinion by the Attorney General supporting a similar ordinance in Southern California. But he said he doesn’t “want to keep the people from the people’s records,” even though he worries that there is nothing to stop anyone from generating requests that cost millions of dollars the county doesn’t have.
Supervisor Maureen Mulheren also said she was not concerned about litigation, adding that she trusts county counsel’s advice. But she advocated a better records retention policy, as well as improved communication. As an example, she thought the city of Ukiah did a good job developing trust with residents when it used an infographic to report the expenditures of a street tax. But communication goes both ways. She said she’s seen requests for information that she and her colleagues on the board can easily provide. She noted that her cell phone number is public, and she makes herself available to constituents on social media as well as in person. Many of the requests, she said, are “things we can just tell people…it doesn’t have to be a big ordeal.”
If you’re requesting the info for profit and marketing and financial gain, you SHOULD pay for it. Free public records access is for important situations that may affect an individual, group or the community. Not for marketing and profit gain by private business in methods akin to getting people’s personal info through “cookies” and other means as with the internet. “Yes um we’re a private business and we want city/county employees to spend two days accessing and providing us with info on everybody we think we can make money from, so we can personally profit, while the taxpayers foot the bill”. No.