When the Open Government Commission was formed in 2008, it was comprised of three council members who were tasked with ensuring citizens receive greater access to public information.
With the commission made up entirely of citizens as of March, some are calling for more input from beyond the City’s sphere of influence when mulling over what is public information and what isn’t.
The commission, as defined in the Open Government Ordinance, is a task force that reviews requests for public information. The OGC also advises City Council if a majority believes a record should become public-against the recommendation of the City Attorney and staff.
At the May 29 meeting, OGC Chairman Walt Glines proposed asking City Council for the ability to seek independent legal counsel from someone who specializes in First Amendment law to provide a counterbalance to the city attorney’s perspective.
City staff didn’t say no, but Glines said he doesn’t think he received a real answer.
“The city attorney represents the City, and the Open Government Commission represents the people. We have different bosses,” Glines said. “The city attorney is not tasked with presenting both sides of an issue.”
Mayor Pro Tem Perry Woodward penned Gilroy’s Open Government Ordinance in 2007 between the time he was first elected to the council and his first meeting, based off of a Milpitas ordinance, he said.
As Woodward wrote in the first draft of the ordinance he presented to council, the commission can, at its request, seek the input of an experienced attorney competent in public access law as well as the input of the city attorney.
City Council did not approve that clause, after spending more than 15 hours in study sessions comparing the city attorney’s preferred version of Gilroy’s sunshine ordinance with his. The ensuing tug-of-war “took the heart out of the ordinance,” Woodward said.
As it stands, the city attorney—Gilroy’s contracted San Jose-based firm Berliner Cohen—serves as the sole legal advisor to the commission. But Woodward and Glines agree that allowing the commission to hear the input of an independent attorney is still something that needs to be done.
“This city attorney is a big part of the problem in terms of the culture of secrecy that still exists,” Woodward said. “That approach of having a default of keeping everything secret, being as closed, guarded and as difficult to get information out of is something I’ve never been able to understand about Berliner Cohen, especially when they work for the council and the council is saying ‘be as transparent as possible.’ That’s not what we get.”
When the Gilroy Dispatch appealed to the commission May 29, following a denial of a public records request for the names of public safety retirees who claimed an industrial disability, the city attorney and staff prepared a detailed report, citing case law, state and federal law.
The commission ultimately upheld the denial.
“To me, if it’s public money it’s public information—except we have a very convincing argument on why the City cannot do this (release the names),” Glines said in the moments following the determination.
Looking forward, Glines said he plans to continue to seek the council’s permission to use, on an as-needed basis, an independent attorney. Now that the commission is comprised of all-volunteers—not elected officials—Woodward said he’s hopeful the commissioners can continue moving closer to the structure he originally proposed.
“There are a number of well-qualified First Amendment lawyers around—people who have represented newspapers and others who understand all the same concepts to give the OGC a fresh perspective on some of these questions,” Woodward said. “That’s what I envisioned. The utility of having an open government commission has been somewhat undermined by not having independent legal advice.”
