Driving DMV to openness

Stephen James knows it can be very difficult to get the government to obey the law. An investigative reporter (and contributor to SN&R), James often locks horns with government officials who refuse to hand over information he believes the public legally is entitled to inspect.

Often, when agencies are being intransigent, reporters like James have few options. He can spend months writing letters and trying to coax government officials into coughing up public documents. But many times, he will give up and walk away frustrated. “There are no ramifications for an agency that doesn’t comply with a public-records request,” James said.

Typically, reporters stop short of suing. There are just too many occasions in which agencies refuse to grant public-records requests, and there’s not enough time or money to litigate even a fraction of them.

“You could sue somebody every week,” James laughed. But when officials at the state Department of Motor Vehicles refused to hand over information James had requested about overtime compensation paid to certain employees, he became fed up. James said the agency had so blatantly violated the Public Records Act that he had no choice but to sue.

James was investigating overtime paid to peace-officer employees of the DMV, while he followed up on news reports of internal corruption within the state agency. James’ goal was twofold. He wanted to find out how much overtime the DMV’s internal investigators were racking up in their efforts to weed out driver’s license fraud, bribery, identity theft and other misbehavior. “They had a lot of problems, so I wanted to see how much they were spending to clean up their own mess,” James said. But he was also interested in whether overtime was being abused, which he said is one of the more common forms of corruption in state government. In light of the worsening budget crisis, James said, the possibility of overtime abuse was of vital interest to the public.

He requested to see the overtime paid to each individual employee of the DMV’s Special Investigations Branch during a three-year period, a request that agency officials denied, saying it violated the privacy of the individuals.

According to the California Public Records Act, all contracts between the government and its employees are public records. James and his lawyers contend that contract information includes compensation rates and that the right to privacy does not prevent citizens from knowing how much a government employee is paid with tax dollars.

James said he then reached what he believed was a compromise with the agency. The DMV would give a breakdown of overtime paid to each employee, but the names and other identifying information would be redacted. James said he wasn’t entirely satisfied with not getting the employee names but agreed to inspect them as such, intending to press for the names at a later date.

But when James arrived to inspect the records, a DMV employee handed him a single page with only three numbers on it. DMV officials said they had added up all the overtime paid out during the past three years and claimed it was around $100,000 total. But because the record provided no information about overtime paid to individual employees, it was meaningless to James’ investigation.

After he spent four months going back and forth with the agency, James said, “they basically said, ‘This is all you’re going to get.’ It was totally useless.”

And, even though he feels the law is on his side, there was no way to enforce the law without going to court.

DMV officials would not comment on the case, other than to say that they disagree with James’ interpretation of the Public Records Act, pending resolution of the lawsuit.

However, DMV spokesman Bill Branch did say there is no evidence of overtime abuse within the agency. And, without full access to overtime records, the public might have just have to take the DMV’s word for it.

Lacking the resources to hire lawyers, James turned to Bay Area law firm Gray Cary Ware and Freidenrich, which agreed to take the case on pro bono. The firm has experience representing larger outfits, such as the San Jose Mercury News, in disputes regarding the Public Records Act. On occasion, the firm also will go to court on behalf of independent journalists and smaller media companies to get agencies to comply with the law.

“We took on Stephen’s case because we think he deserves representation,” explained attorney James Chadwick. “There is a tremendous unmet need for help among people who really can’t afford it.”

James’ lawsuit is just the sort of thing that Chadwick and groups like the California First Amendment Coalition (of which Chadwick is a board member) say could be avoided with a California constitutional amendment that would strengthen the public’s right to access information.

Throughout the years, said Chadwick, the power of the Public Records Act and other open-government measures have steadily eroded as agencies have claimed more and more information was exempt from disclosure to the public. Chadwick said the DMV’s claim of a privacy exemption regarding the pay records is just one of many tricks agencies have learned to use to prevent public access. “What we have seen is that these agencies are constantly pushing the envelope,” Chadwick said.

That is why he and other open-government advocates drafted Senate Constitutional Amendment 7, carried by state Senator John Burton, who managed to push it through the Senate last year. It was intended to create a “constitutional right to access” to public information and deter government officials from prohibiting disclosure of records that are not expressly exempted by state law.

If passed by both houses of the Legislature, the measure would have gone before the voters in the next general election. But it died in the assembly, said Chadwick, after lobbying by insurance and other business interests and after some quiet opposition from the California attorney general’s office. Burton has brought the measure back this year as Senate Constitutional Amendment 1.

If the Legislature fails to get the measure on the ballot this time, Chadwick said, the California First Amendment Coalition might mount a signature-gathering campaign to qualify it as a ballot proposition. Ironically, Chadwick said that if a constitutional amendment is successful, it could mean less work for him because the public would be more successful at getting public information without having to resort to litigation.

“I know it sounds strange, but it would be nice to put myself out of work,” Chadwick said.