Supervisors unanimously repeal illegal public records ordinance

Happy to let you know that on this past Tuesday, May 9, the Board of Supervisors voted unanimously to repeal the unlawful Public Records Ordinance that was approved last year.

As most of you know, for the past two months I’ve written a series of columns, drawn from legal briefs I’ve prepared, outlining how County Ordinance 4705 (so-called Public Records Act Ordinance) violated the California Public Records Act, as well as a seminal California Supreme Court decision rendered a couple of years ago.

I want to thank everybody who has been thanking me for my part in getting this dispute resolved. But it’s what I do, as over the years, I’ve tackled a lot of sticky issues, and with the help of others, we’ve been able to solve quite a few problems. I’m not a journalist, I’m a good government advocate, a local government official who manages a water district and is chairman of our town council, host a politics/current events radio show, and I happen to publish a newspaper, the Mendocino County Observer. And most important of all, I have fun doing all these things because you can’t be all solemn and serious-minded about politics and governing all the time. That’s unsolicited free advice for some of the more somber and unsmiling “activists” that share with us what Nelson Mandela called “our rented space here on Earth.”

Here are some of the comments that I made at the BOS meeting via zoom.

I’m assuming that everything will go according to plan and that County Ordinance 4705 (so-called Public Records Act Ordinance) will be repealed today.

The root of the problem is there is this digital divide now existing that creates this gap between old school paper records and electronic records. and databases.

That’s the issue where the California Supreme Court in a May 2020 unanimous opinion , concluded after a comprehensive review of the CPRA’s text, structure, and history, that “just as agencies cannot recover the costs of searching through a filing cabinet for paper records, they cannot recover comparable costs for electronic records. Nor, for similar reasons, does ‘extraction’ cover the cost of redacting exempt data from otherwise producible electronic records.”

Aside from joining the Court’s unanimous ruling, Justice Cuéllar also wrote a separate concurring opinion where he spoke of bridging the gap between paper and electronic records. Cuéllar said, “… electronic data can be stored in nearly infinite ways, jurisdictions … can respond to public records requests using technologies that continue to evolve. Imagine a not-so-distant future when government entities deploy more thoroughly automated, artificially intelligent systems for responding to Public Record Act requests. Such systems would likely weave into a nearly seamless quilt —— either because of the software’s design and functionality, or because of how the relevant data were classified —— the search of government databases for responsive records, their extraction from the databases, and the editing of portions of the data exempt from disclosure. Such technology could readily help agencies be more accurate, efficient, and thorough in responding to public records requests — and allow members of the public to receive quicker access to government records.”

Right here in Mendocino County, we have a Sheriff, Matt Kendall, who is aggressively and positively leaning forward in a very progressive manner using one of these new electronic data intelligent systems for responding to Public Record Act requests. MCSO IT staff is still in the process of installing this new technology that will enable the public to search, download, and retrieve both paper and electronic documents. Kendall says the system will also perform redactions and protect personal privacy as required by law. He plans in the near future to make a presentation to the BOS on MCSO’s newly acquired integrated records management system. Kendall’s goal is “to put every record possible online.”

Subsequent to this Ordinance’s repeal, requesters of public documents who paid illegal fees should be compensated without any argument from the County. If the County refuses to make requesters whole for paying unlawful fees, then litigation will occur and the County will lose that lawsuit without question, and then would have to pay requesters attorney’s fees also. Of course those are our tax dollars that the County would be wasting, but I don’t believe that will happen.

So, the dispute is now settled in Mendocino County, I want to thank Supervisor John Hachak for his support and assistance, especially in circulating my legal briefs and case citations to his Board colleagues and County Counsel.

I also want to thank Supervisors Ted Williams and Mo Mulheren for doing the right thing by joining with 3rd District Supervisor John Haschak to take action to strike down the illegal ordinance. I also want to thank Supervisors Glenn McGourty and Dan Gjerde for voting to repeal the Ordinance and making it a unanimous decision.

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The Board also agreed with my recommendation to reimburse members of the public who were charged illegal fees prohibited by the Public Records Act.

County Counsel Christian Curtis said, “I don’t agree with Mr. Shields that the prior ordinance wasn’t legal. However, the Board may decide that the amount of fees in question , simply aren’t worth any potential litigation over that issue. So I think I may ask to work to work with Risk Management and then possibly bring forward a plan to the Board to address that issue.”

At the same May 9th meeting, the Supes approved a new policy establishing guidelines for the retention and disposal of emails generated or received by County personnel in the course of their official duties. While I haven’t had the opportunity to fully review and analyze the policy yet, it appears to be one of those “electronic documents” issues that would comfortably fit into Sheriff Kendall’s new artificial intelligence system for handling, instead of relying upon County staff to sort through potentially hundreds of thousands of emails.

Although the Chinese consider it a curse, I’ll say it anyway, these are interesting times we live in.