Ever since last fall subsequent to the Board of Supervisors approving Ordinance No. 4507 (“CPRA Ordinance”), the Board has been faced with challenges regarding the legality of the Ordinance from media organizations, good government groups, county residents, and at least one Supervisor, John Haschak, who twice has attempted to have it rescinded.
The crux of the dispute is whether the Ordinance’s provisions relative to record duplication fees comply with the California Public Records Act (CPRA).
The CPRA specifies that, “Copies of records may be obtained for the direct cost of duplication, unless the Legislature has established a statutory fee. The direct cost of duplication includes the pro rata expense of the duplicating equipment utilized in making a copy of a record and, conceivably, the pro rata expense in terms of staff time (salary/benefits) required to produce the copy. A staff person’s time in researching, retrieving and mailing the record is not included in the direct cost of duplication.”
In fact, citizens have a right to inspect most records – i.e., go into a government office and look at them – at no cost. You also have the right to make your own copies using your own devices, such as scanning or photographing the records with a cell phone. If you want the agency to make copies of records, it can charge you for “the direct cost of duplication.” It cannot charge for time spent searching for, reviewing or redacting records.
The courts have ruled that, “The direct cost of duplication is the cost of running the copy machine, and conceivably also the expense of the person operating it. ‘Direct cost’ does not include the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted.”
In direct contravention of the CPRA’s unambiguously restrictive fee-setting provision, County Ordinance 4507 unlawfully permits the County to include in record duplication fees, costs for, among other things, staff time spent searching, researching, reviewing and redacting records.
Here are two provisions from Ordinance 4507 that are unlawful under the CPRA:
“B. Search Fees. Whenever a request for copies of County records subject to disclosure describes the records sought by listing categories of records related to a particular matter, issue or subject, or otherwise does not reasonably describe a specifically identifiable record, the requester shall compensate the County for the costs incurred by the County in responding to the request as set forth in subsection D of this section.”
“C. Specialized Search/Review Fees. Whenever a request for copies of County records subject to disclosure describes a category or type of records (including but not limited to email or other electronic communications) that may include both disclosable records and records exempt or prohibited from disclosure, the requester shall compensate the County for the costs incurred by the County in responding to the request as set forth in subsection D of this section.”
Now keep in mind that the records referenced in the foregoing provisions include both paper documents but also so-called electronic databases, electronic communications, emails, videos, etc.
There are also provisions in the Ordinance allowing the County to charge a fee of “$20 per hour to locate, retrieve, provide and refile such records,” and also charge the public $150 per hour for “review and/or reasonably segregate disclosable documents …”
Needless to say, such charges are unlawful under the CPRA, especially in light of a 2020 unanimous California Supreme Court decision that found, “[j]ust as agencies cannot recover the costs of searching through a filing cabinet for paper records, they cannot recover comparable costs for electronic records. Nor, for similar reasons, does 'extraction' cover the cost of redacting exempt data from otherwise producible electronic records.”
Kate Maxwell, publisher of the Mendocino Voice, told of her experience requesting records under the new Ordinance: “Since the ordinance passed, I personally have had responses to my requests with estimated fees for amounts including $66,660, $28,200, and $16,856.22 — the first two for a single records request related to current supervisors discussions on cannabis regulations and CAMP raids. As a small locally owned outlet, we don’t have the budget for these kinds of fees.”
The drafter of County Ordinance 4507 is County Counsel Christian Curtis, who refuses to recognize the long established legal applicability of the CPRA and court decisions interpreting it to, as specified in the CPRA, all local agencies, including county boards of supervisors, city councils, water districts, school districts, etc. and any board or commission of a city, county, municipal corporation or other political subdivision.
He even dismisses a unanimous decision of the California Supreme Court in 2020, that established an important victory for government transparency, that strictly limited the costs that public agencies can demand from members of the public and the media who request public records in an electronic format.
Here’s a brief explanation on the seminal state Supreme Court decision.
The Court's May 28, 2020 opinion in National Lawyers Guild v. City of Hayward, lifts a daunting financial barrier that had discouraged requests for public records like police videos, electronic databases, and public officials' emails, all of which the news media routinely use in reporting on state and local government—and which watchdog groups and individual citizens rely on to hold government accountable.
The unanimous decision also strongly reiterates the pro-disclosure purpose of the California Public Records Act (CPRA), and the constitutional mandate that the law must be construed broadly to promote public access.
It should be noted that if a public body is subject to the Brown Act, it is also subject to the CPRA.
Please note, that with the exceptions of the state Legislature and judicial agencies, there are no other exceptions or exemptions to coverage under the CPRA. It specifically states “all local agencies” are covered under its jurisdiction. Therefore, for example, if the California Supreme Court rules that the City of Hayward violates the CPRA when it charges fees for time spent searching for, reviewing or redacting records, it means that the County of Mendocino is prohibited from doing the very same things.
The doctrine of precedent (stare decisis) is a foundational concept in the American legal system, but it appears to have taken an extended timeout here in Mendocino County.
The other four Supervisors must reign in their obstructionist County Counsel and join 3rd District Supervisor John Haschak in rescinding Ordinance 4507.
(Jim Shields is the Mendocino County Observer’s editor and publisher, observer@pacific.net, the long-time district manager of the Laytonville County Water District, and is also chairman of the Laytonville Area Municipal Advisory Council. Listen to his radio program “This and That” every Saturday at 12 noon on KPFN 105.1 FM, also streamed live: http://www.kpfn.org)
A sad comment on the local state of affairs, but Curtis’ nutty reign as County Counsel seems to fit a more general pattern. Can’t he even read?