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TO: |
Mayor
and City Council |
FROM: |
Chuck
Reed |
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SUBJECT: |
Public Records ActPolicy for Disclosure
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DATE: |
November 21, 2003 |
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RECOMMENDATION:
Adopt a
Statement of Policy and General Rules to guide the City Attorney in the
development of a protocol for disclosure of public records under the California
Public Records Act that is consistent with the following Statement of Policy
and General Rules:
The right of the
people to know what their government is doing is fundamental to democracy, and
with very few exceptions, that right supersedes any other reason government
officials may have to limit public access to information. The circumstances in which the business of government may be conducted
in secret are to be narrowly defined.
[See the Public Records Act]
The City exists
to aid in the conduct of the people's business. Council actions shall be taken openly and Council deliberations
be conducted openly. The people of this City do not yield their sovereignty to
the Council which serves them. The people, in delegating authority, do not give
their public servants the right to decide what is good for the people to know
and what is not good for them to know. The people insist on remaining informed
so that they may retain control over the instruments they have created. [See the Brown Act]
The people of
this City shall have greater access to City records than prescribed by the
minimum standards of the California Public Records Act.
A record shall
not be withheld from disclosure unless it is exempt under express provisions of
the Municipal Code, the California Public Records Act or some other statute, or
the public interest served by not making the record public clearly outweighs
the public interest served by disclosure of the record. Any withholding shall be justified in
writing with an explanation of the basis for the withholding.
A record shall
not be withheld from disclosure in its entirety unless all information
contained in it is exempt from disclosure. Information that is exempt from
disclosure shall be redacted or deleted in order that the nonexempt portion of
a record may be released.
Preliminary
drafts shall be subject to disclosure after final action has been taken. If a
preliminary draft record is not normally kept on file and would otherwise be
disposed of, its factual content is not exempt from disclosure. Only the
recommendation of the author may be withheld. Draft versions of an agreement
being negotiated with some other party must be preserved and made available for
public review after final action has been taken.
Unless otherwise
privileged under California law, when litigation is finally adjudicated or
otherwise settled, records of all communications between the city and the
adverse party shall be subject to disclosure, including the text and terms of
any settlement.
Contracts,
contractors' bids, responses to requests for proposals and all other records of
communications between the city and persons seeking contracts shall be open to
inspection immediately following the bid closing, except for proprietary
financial data submitted for qualification for a contract shall not be made
public unless that person is awarded the contract.
Budgets which
have been submitted to the Council and all bills or records of payments, other
than payments for social or other services whose records are confidential by
law, shall not be exempt from disclosure.
BACKGROUND:
The public’s
rights of access to information held by local agencies are defined by the
California Public Records Act. The Public Records Act declares that all records
held by state and local agencies are public, but specifies some exemptions to
the rule. Except as otherwise
prohibited by law, a state or local agency may adopt requirements for itself
which allow greater access to records than prescribed by the minimum standards
set forth in the Public Records Act.
Other local governments in California have adopted “Sunshine Ordinances”
to allow for greater public access. San
Jose should allow greater access also.
The City
Attorney’s Achievement Plan 2002 - 03 included developing a protocol for the
release of records to the public. That
protocol has not been completed and the City Attorney is now working with other
City Attorneys and the County Counsel in developing a protocol that is
consistent within the county. Other cities in the county may prefer to meet
only the minimum standards. The protocol
should be developed so that it reflects a strong commitment to the philosophy
of open government and gives our people wide access to public records, well
beyond the minimum standards set by state law.
Chuck
Reed
Councilmember
cc: Patricia L. O'Hearn, City Clerk