City upholds denial of disability retiree names

Since October, the Gilroy Dispatch has been attempting to get the names of six public safety retirees who claimed an industrial disability within the past five years through two requests to city officials under the California Public Records Act.
Both record requests have been denied, and a recent formal appeal to City Administrator Tom Haglund was unsuccessful.
On the other hand, the City of Bell—once marred by scandal following the 2010 indictment of a significant portion of city officials for corruption—released the names on Feb. 12 after receiving the exact same request from the Dispatch.
At this point, Gilroy officials say they are attempting to find out from Bell why they released the names, seeking specific legal reasons why the information was made public.
“We contacted the City of Bell in hopes they could help us also discover a legal basis to provide the requested information,” Haglund wrote in the City’s response to the appeal,” Haglund wrote in the City’s formal response.
As of press time, Gilroy’s efforts have been unsuccessful.
The presumption that there should be a legal basis to release government documents is something legal experts take issue with. Since Bell released the names, Gilroy should follow suit, said General Counsel for the California Newspaper Publishers Association, Jim Ewert.
“What the city is doing is thumbing its nose at both the state statutory law and the state constitution,” Ewert said. “The City of Bell agrees; case law requires you provide the information.”
The California Public Records Act was adopted in 1968 and requires government agencies release documents to members of the public upon request unless the information, by its very nature, falls into a category exempt from disclosure.
“There’s a presumption of openness and now, all of a sudden, Gilroy decides it doesn’t want to give the information,” Ewert said, suggesting that the City thus far has not proved California law prohibits the release of the six names. “Rather than comply with its duty under the law, the City is holding the citizens in contempt.”
Bell officials said they’re confused as to why Gilroy is asking their attorneys for legal clarification on information they released through the Public Records Act.
“I’m not sure why they’re relying on our attorney,” Interim Bell City Clerk Janet Martinez said. “That’s just ridiculous. Every city pays their own attorneys to know the law.”
Earlier this year, Haglund verbally indicated to the Dispatch during an Open Government Commission meeting that the newspaper should include a legal basis and grounds for the appeal in the first step of the formal process.
This newspaper declined to do that.
“The presumption in the Public Records Act is any records used in public’s business are presumed disclosable and need no legal justification. It really is simple,” Ewert added. “They can obfuscate it as much as they want.”
Furthermore, Haglund hinted in the City’s formal response to the written appeal that Bell might not have legally released the information and that the Dispatch may have not actually received the names of Bell’s retired police officers.
“Having spoken to Bell officials in the City Clerk’s Office and the City Attorney’s Office they were not able to assist us in identifying a legal basis for provision of the disability status information you seek from us (and presumably sought from them), or that any records you received from Bell were provided to you legally,” Haglund wrote.
“I think this is an attempt to distract the public from the main issue which is that the City of Gilroy is a scofflaw to the Public Records Act,” Ewert added. “The newspaper is doing precisely what its supposed to do, which is hold government accountable.”
Under Gilroy’s Open Government Ordinance, members of the public who receive a denied records request and challenge it must first appeal to the city administrator. Next, they must appeal to the Open Government Commission—and if they still challenge the City’s determination—must then address City Council.
The Dispatch intends on appealing to the Open Government Commission on May 29.
Why the Dispatch is fighting to obtain the names
The Dispatch’s two attempts to obtain the names of former police and fire employees who have claimed they were injured on the job were prompted by 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.
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 through the Public Records Act by this newspaper.
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 are in the “$100,000 Club”—and 11 of those are retired from public safety jobs.
The average pension for the 14 public safety retirees from Gilroy is $133,800, according to the Grand Jury report.
Of cities in Santa Clara County, the Grand Jury found Gilroy had the second-highest percentage of industrial disability retirements at 39 percent. Only Palo Alto had a higher rate at 51 percent. Most cities hovered around 26 and 30 percent.