‘Twisting the presumption of access on its head’

The Gilroy Dispatch plans to submit a formal appeal to City Administrator Tom Haglund this week in an effort to overturn a determination by the City Attorney’s Office that the names and pension amounts of six retired police and fire employees who claimed a work-related disability since 2007 are confidential.
At the Mar. 13 meeting of the Open Government Commission, Haglund encouraged the official newspaper of record for the City to articulate the legal basis for why the City can legally turn over the information.
Articulating a legal basis to seek publicly held records, however, compromises the presumption of access, according to legal experts.
Chief Legal Counsel Jim Ewert with the California Newspaper Publishers Association said Gilroy is misunderstanding the purpose of the California Public Records Act – which requires disclosure of government records unless prohibited by law.
“That’s the burden on the City of Gilroy,” Ewert said. “By asking for the legal argument, (Gilroy) is twisting the presumption of access on its head.”
In an Oct. 21 response to the Dispatch’s request, Assistant City Attorney Jolie Houston cited confidentiality issues and non-disclosure agreements preventing the information from being made public. Government Code Section 2030 prohibits the release of data and any individual record relating to retirement information, according to Houston.
Back in council chambers, OGC Commissioner Jack Foley asked to hear a generic summary of the section of code Houston cited, which Haglund explained “essentially prevents the city from releasing the information.”
“I don’t make interpretations of legal statutes outside a particular instance,” City Attorney Linda Callon replied.
Foley then asked her if data and individual record would apply to somebody’s name, to which she responded, “I have no opinion on that right now.”
In contrast, the City of Bell – once marred by scandal following the 2010 indictment of a significant portion of city officials for corruption – released the names of its retired public safety employees who have claimed a work-related disability. Bell sent a list of the names within 10 business days in response to a Dispatch request filed under the PRA.
Gilroy’s contracted legal firm, San Jose based-Berliner Cohen, billed the City more than $2,700 for legal research and time spent producing the two responses. Berliner Cohen spent nearly 12 hours – at a rate of $232 per hour – researching case law, making phone calls, writing emails and drafting the responses to the Dispatch’s public information requests, according to invoices obtained by this newspaper.
This Dispatch’s two attempts to obtain the names of Gilroy’s disabled public safety retirees stemmed from a September report issued by the Santa Clara County Civil Grand Jury, which estimated too many public safety retirees in Gilroy are claiming a semi-tax-free haven of a work-related disability.
Since 2007, six of 14 former police and fire employees in Gilroy – three police officers and three firefighters – have cited an industrial disability, which exempts the first 50 percent of their monthly pension from state and federal income tax for life, according to the Grand Jury. Of Gilroy’s retired employees, 17 earn roughly $100,000 or more annually; 11 are retired from public safety jobs.
Haglund said he’d review it and make a formal determination within 10 days whether the records should be released or remain confidential. If Haglund determines to uphold the City Attorney’s analysis of state law, the Dispatch plans to appeal to the OGC in May. The OGC is an all-citizen government body that advises the City Council on transparency-related matters.
–Sept. 16: Dispatch requests disability claims from industrial disability retirees over the past five years.
–Sept. 26: City attorney responds, denies request, citing confidentiality.
–Oct. 11: Dispatch amends request, seeks names and payment amounts for industrial disability retirees over past five years.
–Oct. 21: City attorney denies request for names of disabled retirees. Names of all public safety retirees are provided, but payment amounts are not included.
–Dec. 4: Dispatch asks for the amount of money the City paid the City Attorney’s Office researching and preparing the responses for the previous two requests.
–Dec. 13: City attorney replies: Invoices show the City paid its contracted legal firm, San Jose-based Berliner Cohen, $2,700 – 12 hours for $232 an hour ¬- preparing the two responses.
–Jan. 30: Dispatch asks City of Bell for industrial disability retirees’ names over past five years.
–Feb. 10: Bell City Clerk requests authorization to extend deadline for consultation with legal counsel.
–Feb. 11: Bell City Clerk provides names of eight retired police officers, as firefighters are contracted through Los Angeles County.
–Mar. 13: Dispatch announces intent to appeal: City Attorney declines to comment on legal opinion of the statute cited by her office in the Oct. 21 response for the benefit of the OGC. City Administrator recommends Dispatch include legal citations for why the names/pension amounts should be released.