Executive Editor Frank Pine
Posted: 09/18/2010 07:10:16 PM PDT
Neil Derry pulled his Sunshine Ordinance off the agenda for last week’s San Bernardino County Board of Supervisors meeting.
The measure, which Derry first introduced in March, is intended to make county government more accessible to the public by more clearly establishing the manner in which county officials are to conduct public business and respond to requests for information.
The original proposal included the formation of an ethics commission, but that was dropped in light of the lousy economy and the county’s current budget situation.
Deliberative process makes my head hurt.
No, I don’t mean I need aspirin for a good think.
I’m talking about the legal term cited by government officials as a reason to withhold documents, such as appointment calendars, from the public.
I suspect it gives Neil Derry a headache, too.
It is, after all, the reason he pulled his ordinance from the supervisors’ agenda.
At issue are about two paragraphs in the 58-page ordinance.
They are, however, important paragraphs.
When Derry introduced the ordinance in March, he vowed to bar county officials from citing deliberative process as a reason for holding back documents.
But just what is deliberative process, and why is it such a big deal?
You won’t find it in the state government code. Rather, it stems from a 1991 state Supreme Court decision on a case in which the Los Angeles Times had sued the governor’s office to gain access to the governor’s appointment calendars.
The governor argued, among other things, that releasing his calendars would undermine his deliberative process by giving undue insight into the nature of his decision-making.
Specifically, he claimed that if the public had access to the names of everyone with whom he met, people might be less likely to meet with him and provide candid counsel.
The trial court ruled in his favor, but that decision was overturned by an appellate court. The Supreme Court then overturned the appellate court, and in a written decision, introduced deliberative process to California law.
More or less.
Deliberative process is recognized at the federal level as a right of executive privilege that the president has. In considering the California case, the Supreme Court considered not only California law, but federal precedent as well.
Since 1991, deliberative process has proliferated throughout California, and many local agencies – cities and counties – have cited it as a reason for withholding documents.
The county, for example, cited deliberative process when refusing to release the calendars of former Supervisor Bill Postmus, when Postmus disappeared during the wildfires of 2006, when he was running for the Assessor’s Office. A court eventually ordered the county to release Postmus’ calendars (and Supervisor Paul Biane’s, too), but did allow the calendars to be redacted to protect some measure of Postmus’ deliberative process.
The county has also cited deliberative process as a reason for redacting expense reports of some county leaders, arguing that taxpayer-funded meals with unidentified persons are part of the deliberative process.
Derry initially said he wants to prohibit county leaders from using deliberative process to keep records secret, but county attorneys have advised that the Board of Supervisors cannot legally bar other elected officials from citing deliberative process.
Now, Derry is working on the language in the ordinance to narrow the application of deliberative process as much as possible.
That’s a good thing.
There is a legitimate legal debate here, and the issue is not at all clear cut.
In rendering its decision in 1991, the Supreme Court relied on a provision of the California Public Records Act that exempts pre-decisional materials, such as preliminary reports, notes, draft memos and that sort of thing, from release provided the public interest in withholding the documents outweighs the public interest in disclosure.
That last bit is very important, as it is kind of a catch-all in the law, and deliberative process rests upon it. The logic is that the public interest in preserving and facilitating the deliberative process of elected officials outweighs the public’s interest.
That can probably be argued on a case-by-case basis.
There are probably meetings that elected officials have that should be private. Vetting the claims of a whistle-blower, for example, might be something you don’t want on the calendar in order to protect the identity of the whistle-blower.
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