Failure to deliver

Before he was sentenced to prison, Robert Rizzo oversaw one of the poorest cities in Los Angeles County while collecting one of the nation’s largest salaries for a public employee: nearly $800,000.

A reporter for the Los Angeles Times used the state’s open records law—the California Public Records Act (CPRA)—to find records revealing Rizzo and other top administrators in the city of Bell had misappropriated taxpayer dollars to line their pockets while they neglected to uphold their oaths to serve the public. The Times’ discovery, in 2010, led reporters to uncover even more malfeasance in the small, struggling city, spurring the resignation of several officials, as well as Rizzo’s 12-year prison sentence.

David Snyder, executive director of the First Amendment Coalition, a nonprofit that promotes open government and free speech, said that people who request access to records from public agencies using the CPRA are essential to keeping government officials accountable to the people they serve.

“Transparency is the oxygen for a healthily functioning democratic form of government,” he said, and when government officials cease being transparent, democracies die.

“The premise that our government works under is that it is by the people and for the people, and if the people don’t know what it is the government is doing, they can’t, at a most basic level, understand what it is the government is doing in their name and, maybe more importantly, they can’t challenge or contest or criticize what the government is doing in their name.”

With the importance of transparency in mind, the Chico News & Review requested access to the web and mobile browser histories of 16 top public officials around Butte County as part of an exercise for Sunshine Week, a national initiative that aims to educate the public on the importance of open government and the dangers of secrecy. This year, the initiative is being observed March 11-17. Since its establishment in 2005, it’s coincided with the March 16 birthday of James Madison, the fourth president of the United States and author of the First Amendment.

In emailed requests, the CN&R sought the names of websites visited and the time and duration of the visits by local officials, including school district superintendents, college presidents, the director of Caltrans District 3, the county sheriff and city managers. To limit the volume of records, the CN&R requested records for a single day, Feb. 1. If the agency couldn’t provide records for that day, then a request was made for another day.

But most didn’t comply.

Only one agency, Oroville City Elementary School District, successfully fulfilled the request. Five partially fulfilled the request. Six charged that the information was exempt from disclosure. And other requests are still processing.

Under the law, agencies must determine and then promptly notify a requester whether the request seeks disclosable public records that can be processed within 10 days of receiving the request. The Oroville school district didn’t fulfill its duty in this regard, nor did the cities of Chico and Oroville.

The Paradise Unified School District superintendent, Michelle John, initially said she wouldn’t release her browser history until the reporter provided proof that he worked for the CN&R. (The reporter is a former CN&R intern and a current contributor.)

“I don’t have anything to hide,” John said on Feb. 20, adding that her office has been getting a lot of “weird” requests and requesters don’t always turn out to be who they say they are.

Snyder found John’s reaction “disturbing,” because any member of the public can use the CPRA, regardless of who he or she is, or where he or she lives, works or doesn’t work.

“There is clear law that the government can’t discriminate between individuals or groups when it releases records,” he said. “It can’t say, ‘Oh, well, you’re a Republican. I’m not going to give you the records. But I’ll give them to the Democrat …. You can’t do that.”

Snyder also said the government shouldn’t be asking why a requester wants a record because it’s “irrelevant,” since that information can’t factor into its decision to release the record.

Paul Nicholas Boylan, an attorney who helps citizens pry public records from public agencies, went a step further, calling John’s demand “illegal.”

“That’s a barrier that’s put in the way of you exercising your right to get them, because you should be able to get that stuff regardless of whether you work for a newspaper or not,” he said.

Even though no proof of employment was given, John’s office provided 12 pages of records on Feb. 26, showing her browser history for Feb. 1. In a letter, John said the district would provide her mobile records by March 5, and on that day, in a second letter, she wrote she didn’t have any mobile browsing history.

The records the district disclosed didn’t include any information about the duration of her site visits. But it did show that at 9:17 a.m. on Feb. 1, she googled and then visited “Paradise & Magalia – Rants and Raves,” a closed group on Facebook.

John declined to be interviewed because she said she had already met her obligation to release the records, according to Jennifer Robbins, the superintendent’s executive assistant.

Butte College sent screenshots of President Samia Yaqub’s browser histories from her smartphone and desktop computer, but the time and duration of the visits were not released.

Shannon McCollum, executive assistant to the president and board of trustees, said college personnel reviewed online tutorials on how to comply with CN&R’s request and couldn’t extract information about the duration of the website visits by Yaqub.

The records showed Yaqub searched for a few education-related terms in her iPhone’s Safari app, including “gayle hutchinson twitter,” “kelly staley on twitter” and “bcoestories twitter.”

That day, McCollum explained, Yaqub had met local education leaders for the “Butte County Promise,” a deal among them to help students reach their educational goals. Yaqub may have been using Twitter to promote that cause, McCollum said.

Butte County’s attorneys handled CN&R’s requests for the browser histories of Kory Honea, the county sheriff, and Shari McCracken, the interim chief administrative officer. On Feb. 26, Bruce Alpert, the county counsel, called CN&R to ask if the reporter worked there, the sort of question that Snyder and Boylan criticize. (Butte County’s Office of Education and Caltrans District 3 also contacted the newspaper to ask about the reporter.) Then, on Feb. 28, Chief Deputy Counsel Roger Wilson wrote a letter saying that the county’s position is that browser histories don’t constitute public records and “may constitute preliminary drafts and notes,” which exempts them from being released.

And, he wrote, “such information may be exempt from disclosure pursuant to the deliberative process privilege,” noting the legal citation for that exemption, as well as an oft-cited court case, which established a precedent for agencies to deny requests based on a determination the interest served by withholding a record outweighs the public interest in its disclosure.

But, Wilson added, both officials “agreed to voluntarily disclose the information requested.” He ended the letter writing “the disclosures are not precedent-setting and are being made despite the above citations and exemptions.”

The records Wilson released included seven mostly blank pages representing Honea’s web activity report for Feb. 1.

The report was generated by the county’s firewall, which, among other things, logs the web usage of county computers for 30 days and then deletes the information, according to Art Robison, the director of Butte County’s information systems.

In a phone call, Wilson called the report “nothing” because it appears to show that the sheriff didn’t surf the web that day. A comma-separated values file, containing nothing but a row of headers, was also released. On March 2, CN&R sent another request for Honea’s browser history, but for a different day.

That request is pending.

McCracken’s web activity report summary similarly shows mostly blank pages, but it does include pesky pop-up advertisements such as “googleads.g.doubleclick.net,” “stats.g.doubleclick.net” and “oneclient.sfx.ms.” Robison said the firewall detects activity from these advertisements, but that doesn’t indicate they were clicked.

In addition to requesting access to the browser histories, the CN&R asked for a copy of each agency’s policy on its employees’ use of technology and internet services to learn what sort of conduct was considered appropriate for public employees in different environments.

Some policies, such as one for Biggs Unified School District, say that employees should have no expectation of privacy or confidentiality when using technological equipment. The city of Biggs policy says: “Employees should consider the material they create and view as public records, subject to inspection.” It also warns against posting on social media during work hours because it “can have the appearance to the public that employees are not actually working.” The city of Chico’s policy says computer files may be disclosed if they’re on a city computer.

And employees of Paradise, Oroville and the county Sheriff’s Office are required to sign forms acknowledging they understand the rules and can be held accountable for violations.

Every agency provided a copy of its employees’ technology use policy, except for the city of Gridley, which said it doesn’t have one. It took Chico’s deputy city clerk, Dani Rogers, only 16 minutes to provide a copy of the city’s policy from the time it was requested. But it took nearly two weeks for employees of Butte County’s Office of Education to fulfill the same request.

The browser history requests yielded a variety of responses.

Officials at the cities of Chico and Gridley and the town of Paradise said that browser history is not retained in the ordinary course of their business.

Snyder said he finds this hard to believe.

“They have an obligation to retain those records for some period of time,” he said. “If they’re automatically deleting every website that every employee of that agency ever visits, I would say that itself is a violation of the California Public Records Act, and California law broadly, because they can’t just delete records automatically.”

Michael Thorpe, risk manager at Chico State, cited California government code section 6254(c), which exempts “Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”

Synder said he could see some cases where this exemption might be properly invoked—say, if the official was searching for medical information or treatments, suggesting somebody was seeking advice. But for other sites, he said, that doesn’t work.

“If all you knew was that they visited Bank of America’s website, I don’t think they could properly invoke the privacy exemption there,” he said. “The fact that they visited The New York Times website, I don’t think so. I don’t see how that’s an invasion of personal privacy.”

And along with representatives of Butte County and the town of Paradise, Thorpe also cited the deliberative process exemption on behalf of Chico State, writing “the California Supreme Court recognized that information, like web browsing history, which ‘reveal[s] the substance or direction of an official’s judgment and mental processes,’ is protected from disclosure.”

Snyder said if government agencies don’t feel like producing a record they can’t just invoke the deliberative process privilege. They bear the burden of demonstrating or articulating why secrecy outweighs the public interest in disclosure, he said.

Currently, the CN&R is awaiting responses from the Butte County Sheriff’s Office, the city of Biggs, Biggs Unified School District and Caltrans District 3.

Asked why the average reader should care about open government, Snyder paused and then replied.

“You’re entitled as the boss to know how they’re going about their business and whether they’re doing what they should be doing as your employee. In our system, the government works for us, the people, and so the people are entitled to know what it does so we can hold them accountable where they screw up.”

Boylan agreed, but cautioned that people who pursue records will encounter hostile agencies, reluctant to honor their right.

“They feel deep down that those people who are asking for records don’t have a right to receive it, don’t have a right to look over their shoulder,” Boylan said. “They’re insulted by it. They automatically tend to say no and the law requires them to tend to say yes. It doesn’t surprise me but it saddens me. My hope is that it doesn’t take a lawsuit for them to change their mind.”