It’s not done until it’s done. That is what city officials are
saying about a private consulting company’s draft report concerning
the future of the 9-1-1 call center and the efficiency of the
police department’s deployment of officers.
Gilroy – It’s not done until it’s done.
That is what city officials are saying about a private consulting company’s draft report concerning the future of the 9-1-1 call center and the efficiency of the police department’s deployment of officers. And it appears the law is on their side for the time being.
Like many other cities, Gilroy is relying on court precedent and narrow disclosure laws to prevent the release of Matrix Consulting Group’s preliminary report, but there are more recent laws that encourage openness during the deliberation of such a soon-to-be-public report.
The courts have yet to review these newer standards, though, and people on either side of the transparency aisle – from the state Attorney General to open-government advocates – agree that preparing a final, public report realistically entails a private consultation process that so far remains off limits to public scrutiny.
This allows affected departments (in this case the GPD) to look for and correct any incidental misinformation that could mislead the public, according to Assistant City Administrator Anna Jatczak. Police managers and City Administrator Jay Baksa are the only ones who have reviewed the report to date.
City councilmen will not see the report until Baksa and Matrix present the final version to the council at the Nov. 16 policy summit, Jatczak said, at which time the report will become public. Jatczak agreed that releasing Matrix’s draft audit before Nov. 16 would be like putting the buggy before the horse.
“It gets a little murky for residents because there could be up to six drafts of anything, and residents might not understand the conversation that occurred between the consultant and [city] staff,” Jatczak said.
This wait-until-it’s-final argument relies on a 1991 Sacramento Superior Court case involving the Times Mirror Company, which owns the Los Angeles Times. The court found, and the state Supreme Court later agreed, that the newspaper’s request of then-Governor George Deukmejian’s schedule would, among other things, “inhibit the free and candid exchange of ideas necessary to the decision-making process.”
It was a case of the public’s interest in nondisclosure outweighing the public interest in disclosure since releasing the governor’s calendar could have hindered his ability to meet with people, and it has set the tone ever since, according to Tom Newton, general counsel for the California Newspaper Publishers Association.
This “deliberative process privilege” allows the city to prevent the release of “information that would chill the willingness of people to meet with public officials or discuss certain information,” Newton said.
But Newton added that Proposition 59 – passed by 83 percent of voters in 2004 – has since encouraged more transparency, but it lacks its own court case to give it the teeth that would loosen the precedent of privacy, which can only be broken if a court rules disclosure outweighs the public’s interest in nondisclosure.
Mayor Al Pinheiro, who has not seen the draft report yet, said this is all standard procedure and keeping the report under wrap makes sense unless the council decides otherwise before Nov. 16 or unless he suspected any sort of collusion.
“If I ever thought there were internal changes that would adjust the consultant’s findings because of someone manipulating it, then obviously that would be unacceptable,” Pinheiro said.
He expects any changes in the report to be explained, and Jatczak said Matrix will elucidate the process behind its report, but the final version will not include potential misinformation from the preliminary reports and any subsequent strike-outs. It will be a clean report tailored for Gilroy, Jatczak said.
While this process remains standard practice until someone brings a lawsuit under Prop 59, Newton said “the public could be unaware of political machinations that have materially changed [the report].” Matrix’s Nov. 16 public report will shed light on any major changes, Jatczak said, and the city’s contract with Matrix prevents it from “controlling the manner or determining the method of accomplishing the consultant’s services.”
“Do you trust the political process to maintain the integrity of the report, or don’t you?” Newton asked rhetorically.
Right now residents have no real choice but to trust, especially since the city has the Times Mirror case to rely on, as well as a portion of California government code 6254 that exempts the exposure of preliminary draft reports like Matrix’s.
But “at some point, somebody is going to sue, and a court will have the ability to look at Prop 59 and see if it requires a different result,” said Newton, adding that Prop 59 was intended to limit the Times Mirror decision.
The Dispatch filed a Freedom of Information Act request with Pinheiro for the report, and the city has 10 business days to reply with its disclosure decision.
None of this would be an issue at all, though, if Councilman Craig Gartman had not asked for the draft report before Nov. 16. While he said he does not think the report should be released until it’s final, Gartman said seeing the “raw data” and Matrix’s initial impressions as a councilman is different since it would help him understand the process more, especially since this report deals with public safety.
“I think a report straight from the consultant would be very beneficial for the council,” Gartman said, “rather than a report that has been modified by the organization it’s suppose to be critiquing.”
But Councilman Roland Velasco said Gartman’s position is “a bunch of political grandstanding” since the city’s draft policy has precedent, and he said he sees Santa Clara County do the same thing with its draft reports.
“He’s trying to force the city to do something it’s not ready to do,” Velasco said. “I don’t want council members making opinions [on a draft report] and then popping off to the press about facts they don’t have yet. That’s a danger.”
