Sunshine in the Forecast:
City of San José Addresses Open Government and Public Records

The business of government should be open to public scrutiny and oversight, which makes transparency and accountability within government entities imperative to building and sustaining the public’s trust.

 

In a memorandum on this topic the day after he took office, U.S. President Barack Obama declared, “We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

 

Tom Norris

The San José City Council provides one example of how governments are meeting this challenge to operate in the “sunshine.” Its efforts were highlighted in March 2010, when it approved two groundbreaking measures intended to bring greater transparency and accountability to the workings of city government. The decisions were the natural next steps built on a multi-year program of increased transparency.

Cloudy Beginning

The decisions grew out of a California Public Records Act (CPRA) request in early 2009 as rumors were circulating that city council members were communicating via text messages and e-mails with lobbyists and other interested parties advocating positions and actions on issues under debate during city council and council committee meetings.

In an attempt to determine the accuracy of the rumors, a San José Mercury News reporter invoked the CPRA and asked for “all written and/or electronic communications, including memoranda, emails, text messages and voice mails, sent or received by elected city officials during any city council meeting or city council committee meeting since December, 2008.

The city responded by disclosing nearly 400 e-mails and text messages. Later, the reporter questioned why the only text messages provided were those transmitted through the city’s e-mail system. City staff replied that communications sent or received on personal communication devices not owned by the city and not captured by the city’s system are not subject to the CPRA.

Later in the year, the San José mayor and city council directed city staff to explore and report back on ethics and public records issues related to the use of personally owned communications devices to conduct city business.

Murky Ethics and Issues

One issue of considerable interest was how any requirements regarding devices not owned by the city and not operating through the city’s IT networks could be enforced short of regularly confiscating the devices and reviewing contents or acquiring use logs from service providers, neither of which was practical.

Another possibility considered was to issue council members and other high-level staff city-owned devices that would be under the control of the city. However, that would not preclude officials from continuing to use their own devices, effectively defeating the purpose of the city-provided equipment.

Staff finally determined there was no practical means of enforcement through audits or other monitoring. Noting that failure to follow city policy opens employees and officials to disciplinary action, as well as embarrassment in the media should the failure be discovered, staff recommended the adoption of an “honor system with teeth.”

Parting the Clouds

These staff recommendations led the city council to approve two additions to city policy designed to increase transparency. The first requires members of the city council to disclose text messages and e-mails received during a public meeting from lobbyists and other individuals having an interest in an item being discussed. The other addition designates that all messages regarding city business received on personally owned devices are subject to public records access requirements. Those violating the requirements would be subject to standard city disciplinary processes. The council’s action garnered national attention, and one reporter noted that it was likely that San José was the first city in the nation to enact such measures.

The approval of these measures marked only the latest result of three years of activity devoted to enhancing open government in San José. These efforts came in the wake of numerous news media accounts in 2005 alleging excessive secrecy and undue influence of lobbyists on the part of some San José city officials. The intense media attention prompted then council member (now mayor) Chuck Reed to propose 34 “Reed Reforms” promoting open government in early January 2006. Two months later, the city council proposed adopting a number of similar reforms and directed the city manager to develop a plan for implementation, including recommendations on how to engage the public in the process through a task force, working group, or other means.

Shedding Some Light

On April 18, 2006, the San José City Council approved a 15-member Sunshine Reform Task Force (SRTF) to review and provide recommendations regarding the various open government proposals put forward by council members, as well as to propose additional ones to render city government more transparent and accountable. The task force consisted of representatives from neighborhood associations; media; labor, business, academia, and community organizations; city boards and commissions; and one at-large member.

Task force members began their work in June 2006. Over the next two years, the SRTF would meet another 44 times, not including the dozens of meetings of various sub-committees. It was an extraordinary effort on the part of these volunteers, leading to a final report in July 2008.

The SRTF developed its recommendations in two phases:

• Phase I addressed the rules for conducting public meetings and closed sessions, and it established new requirements for public information and outreach activities.
• Phase II focused on the ethics and conduct of public officials, employees, volunteers, and various partners of city government, as well as access to public records and information; the use of technology to further open government; and the administration and accountability of the city’s open government program.

Throughout the process, there was a continuous effort to balance the need for increased transparency against the personal privacy rights of individuals. For example, the first attempts aimed at increasing public access to police records were eventually modified to ensure that the rights of victims and witnesses would be protected. In addition, recommendations to abandon the balancing of public interest in disclosing some records versus the public interest in withholding them were modified to provide continued flexibility in protecting privacy and other rights of individuals. Existing measures permitted by the CPRA for protecting privacy rights, such as redaction of personal information, remained in place.

There was significant concern within the city organization over the additional time and resources that would be required to meet the new requirements, for example involved new time and other requirements for responding to public records requests. The city receives hundreds of significant records requests and thousands of routine ones each year, each of which must receive a response within 10 calendar days, according to the CPRA. The recommended requirements prescribed tight new timeframes:

• Same day for initial acknowledgement of requests and referrals to appropriate staff
• One day turnaround for routine requests
• Three-day response or a firm estimate of when records would be available within 10 calendar days for extensive requests

City management was concerned that increased requirements, combined with decreased staff due to economic conditions, would place undue burdens on staff. Once again, compromise solutions were reached that addressed open government needs and resource concerns.

To permit some flexibility for staff, timeframes were eased slightly:

• 24 hours for acknowledgement and referrals
• Two days for routine requests

Also, the creation of a public records manager position in the office of the city manager provided the additional central coordination needed to comply with the new requirements.

Another example of staff concern over resources involved the SRTF recommendation to establish an open government officer and open government commission. The primary functions of these entities were to monitor compliance with open meeting requirements and provide an avenue for the public to appeal the withholding of records requested under the CPRA.

The open government officer was to be an experienced attorney whose staff included two to three employees. Estimates placed the likely cost for implementing the recommendation at nearly $500,000 annually. Instead, the city compromised by assigning some of the monitoring and appeal responsibilities to the existing city public records manager and other duties to the council rules and open government committee and the city elections committee.

Rays of Sunshine Emerge

Of the 113 separate recommendations made by the SRTF, 108 were ultimately adopted by the city council at five separate meetings, either as they were submitted or with revisions. In addition to the two measures adopted on use of personal communications devices, new sunshine actions include:

• Public meetings must adhere to guidelines far more stringent than the open meeting requirements found in California state law. For example, agenda and materials to be discussed at public meetings are made available to the public via the city’s website well in advance of the actual meetings.
• Information regarding lobbyists is posted online at www.sanjoseca.gov/clerk/Lobby/lobbyist.asp, and council members and the members of boards and commissions must disclose communications from lobbyists under any item up for discussion.
• New time frames for responding to requests for public records help speed the disclosure of records to requestors. Acknowledgement of requests within 24 hours has become routine and 41% of all requests receive a final response within two days; 53% receive a response within three business days; and 85% of requests requiring more time receive a response within 10 calendar days.
• Members of the public who are denied requested records now have access to an administrative appeals process, whereas before, the only means of appeal was through a lawsuit. To date, the public records manager and the council rules and open government committee have heard a combined total of 16 appeals, 12 of which have resulted in the release of requested records.
• Online calendars providing information of appointments from the previous week must be updated each Monday by the mayor, council members, and other high-level city officials.
• Members of the city council; boards and commissions; city employees; vendors; lobbyists; volunteers; and other non-governmental partners must verify in writing they will abide by the city’s code of ethics.
• New requirements to improve accountability of not-for-profit organizations that receive city funding are in place.
• A searchable database of council votes is being developed.
• Statistical reports on activities will be issued by the police department, fire department, and the independent police auditor on a regular basis.
• Changes and additions to city records retention schedules must be posted online for 30 days before going into effect at www.sanjoseca.gov/OpenGovernment/recordsretention.asp.

Nowadays, open government and freedom of information are more than just catch phrases in the City of San José. It is how the public’s business is done. For more information on the city of José open government activities, visit www.sanjoseca.gov/openGovernment/index.asp.

Tom Norris can be contacted at tom.norris@sanjoseca.gov.