Here's a reason to cheer!
Congress has passed the Open Government Act, the first significant reform of the Freedom of Information Act in more a decade. President Bush is expected to sign S. 2488, which would create a tracking system and hotline for requesters, waive fees if federal agencies miss deadlines, create a FOIA ombudsman and make it easier for the public to recover legal fees when litigation helps the release of records.
This is the time of year when we look back at the top stories of the year before it's time to think about what's ahead in '08. Here's the list of nominees from the Associated Press for top worldwide stories. Now the chore is to trim the list down to the top 10. Give it a try!
* Political crisis in
*
*
* Wildfires ravage
* Alberto Gonzales quits as attorney general after string of controversies
* U.S. dollar falls; Canadian currency more valuable for first time in decades
* Anna Nicole Smith dies; fight over her burial and baby ensue
* Severe drought wracks Southeastern states
*
* Bush administration assailed over torture,
* Attempt to forge compromise on illegal immigration collapses in Congress
* Scientists create equivalent of embryonic stem cells from ordinary skin cells
* Intense campaigning in both major parties for 2008 presidential nominations
* Nicolas Sarkozy elected president of
*
* Afghan war: deadliest year since 2001
* Death penalty under scrutiny as painlessness of lethal injection questioned
* Supreme Court bans a controversial abortion procedure
* Military regime in
* Under pressure from critics, Paul Wolfowitz resigns as president of World Bank
* Methane blast kills 110 workers at Russian coal mine
*
* Palestinians feud among themselves heading toward peace talks with
* Russian President Putin signals he intends to maintain power even after term ends
* Tropical Storm Noel kills more than 100 people in
*
* President Bush, Democratic-led Congress at odds over health coverage,
* Venezuelan President Hugo Chavez moves to consolidate power, extend rule
* Oil prices soar worldwide
* Global warming: new warnings from experts, Al Gore wins Nobel Prize for his advocacy
* NASA astronaut accused of trying to kidnap rival for affections of space shuttle pilot
* Duke lacrosse rape case collapses; district attorney ousted in disgrace
* Gunman kills 32 people at Virginia Tech; deadliest shooting rampage in
* Massive wildfires in southern
* Former White House aide I. Lewis "Scooter" Libby convicted in CIA leak case
* Nancy Pelosi elected first female speaker of the House
* Revelations of shoddy conditions at
* CBS fires Don Imus from his radio show for demeaning remarks about
* Highway bridge collapses in
* Barry Bonds breaks all-time home run record, then indicted in steroid investigation
* Six miners, three rescue workers die at
* Earthquake in
* Atlanta Falcons quarterback Michael Vick pleads guilty to dogfighting charges
* Sen. Larry Craig of
* FBI investigates role of Blackwater
* Plane skids off wet runway, killing 199 in
*
This is the first year I've broken away from the newsroom to attend the annual meeting of the California Press Association, a 130-year-old newspaper association. I was determined to go to
If you've followed our stories, you know that the city recently hired a
The California Newspaper Publishers Association, California First Amendment Coalition and Associated Press have filed briefs in support of the Tracy Press, as have a dozen newspapers and newspaper companies: San Francisco Bay Guardian, Los Angeles Times, Copley Press, McClatchy Company, Bakersfield Californian, Herburger Publications, Bay Area News Group-East Bay, Sierra Nevada Media Group, The Record, Metro Publishing Inc. and the Riverside Pres-Enterprise.
In their amicus briefs, they state that the lower court’s ruling creates a loophole through which government and elected officials can exchange information outside of the public view.
Last August, the Tracy Press challenged a San Joaquin Superior Court ruling, when the court backed the city’s contention that Tucker could withhold from the public her e-mail exchanges with the lab. On Oct. 18, the
Last week, the attorneys for the Tracy Press filed their response with the appeals court. If you'd like a copy of the opening briefs, e-mail me at cherim@tracypress.com. For my blogs on this case, see those labeled
Those of us who work with words for a living — and maybe others? — noticed this misplaced modifier in the program for Monday's Veterans Day program in Tracy. (It was in all-caps, but I'll spare you that.)
Friday's Tracy Unified School District's spelling bee for seventh- through ninth-graders ended p with these four winners, who will go on to the San Joaquin Spelling Bee: Caitlin Dong (left), Hector Sanchez, Upinderpreet Gill and Arashpreet Gill. Photo by Diane Dong
Wayne Thallendar, newspaper adviser at Tracy High, took this photo at the season's first football game, with coaches from both Tracy and West high schools.
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Warms my heart to see all these people reading the Tracy Press this morning. Marvin Rothchild, who used to teach at Tracy High School, reads every weekday morning to residents of Tracy Convalescent Hospital. I think it's time to get a computer in there so Marvin can read the TP Web site on the days we don't publish. Photo by Glenn Moore
Be accurate and comprehensive in the representation of subjects.
Resist being manipulated by staged photo opportunities.
Be complete and provide context when photographing subjects. Avoid stereotyping individuals and groups. Recognize and work to avoid presenting one’s own biases in the work.
Treat all subjects with respect and dignity. Give special consideration to vulnerable subjects and compassion to victims of crime or tragedy. Intrude on private moments of grief only when the public has an overriding and justifiable need to see.
While photographing subjects, do not intentionally contribute to, alter, or seek to alter or influence events.
Editing should maintain the integrity of the photographic images' content and context. Do not manipulate in any way that can mislead viewers or misrepresent subjects.
Do not pay sources or subjects or reward them materially for information or participation.
Do not accept gifts, favors or compensation from those who might seek to influence coverage.
Do not intentionally sabotage the efforts of other journalists.
Ideally, photojournalists should:
Strive to ensure that the public's business is conducted in public. Defend the rights of access for all journalists.
Think proactively, as a student of psychology, sociology, politics and art to develop a unique vision and presentation. Work with a voracious appetite for current events and contemporary visual media.
Strive for total and unrestricted access to subjects, recommend alternatives to shallow or rushed opportunities, seek a diversity of viewpoints, and work to show unpopular or unnoticed points of view.
Avoid political, civic and business involvements or other employment that compromise or give the appearance of compromising one's own journalistic independence.
Strive to be unobtrusive and humble in dealing with subjects.
Respect the integrity of the photographic moment.
Strive by example and influence to maintain the spirit and high standards expressed in this code. When confronted with situations in which the proper action is not clear, seek the counsel of those who exhibit the highest standards of the profession. Photojournalists should continuously study their craft and the ethics that guide it.
Digital file standards
(Photo by Alice DeLaurier-O'Neil)Rarely do we gets photos of photographers, but this is Tracy Press Photo Editor Glenn Moore resting last weekend during a Mount Diablo hike. He calls the photo, "Despair."
I've decided that if anyone sends me a picture of someone wearing a Tracy Press hat or T-shirt or even holding an issue of the Tracy Press, I'll put it in this blog. Send away!
A woman who identified herself as a parent called the newsroom Monday to tell us we should read a certain comment left on our Web site.
Someone using the name of the West High School student arrested three days earlier on suspicion of making a bomb threat, making terrorist threats and creating a disturbance on a school campus had posted something that looked to be another threat.
“I was the one who set the bomb up,” the comment read. “The bomb is still located inside the school. To tell you the truth, there is more than one bomb. I set one inside the clock tower and another inside the school district.”
Online comments are uncharted terrain, as we’ve found in the less-than-two months since we’ve added this challenging function to our newspaper Web site.
Information, however, is nothing new for us. The job of newspapers is to gather news and information, and sometimes that information arrives unsolicited, as it does in the online comments.
Rarely, though, does information put us in the kind of situation it did Monday, where we find ourselves becoming part of the story that we also have to cover.
When we read the comment at 1:30 p.m. Monday — about 10 minutes after it was posted, as it turns out — we called Tracy Unified School District Superintendent Jim Franco and faxed a copy of the comment to his district office, which contacted the police.
Then we drove to West High with cameras and notebooks in hand. School had let out at 1:30 p.m., so there were few students milling about. We waited about 15 minutes before we noticed Franco and a campus security guard looking inside the clock tower.
Two hours later, long after the threat to public safety had presumably passed, the police called to ask us for a copy of the e-mail address that had accompanied the comment.
Until this point, everything we’d provided to the school district had been information made public on our Web site, except for the Internet Protocol address, which showed that the comment had been made using the school’s computers.
I called a newspaper attorney in Sacramento to talk about whether we should give up the e-mail address, something I’ve told readers in the past would not be shared.
Telling the police that we wouldn’t give up the unpublished information without a subpoena isn’t all that different from demanding a search warrant before letting an investigator onto private property. Of course, even with a court-issued subpoena, newspapers legally don’t have to give up unpublished information.
Why?
All unpublished content — photos, reporters’ notes, tapes, data, eyewitness observations, unnamed sources, e-mails and addresses — is protected in the state Constitution under the California Shield Law.
We take this legal right seriously, because it sets us apart from the government and entities we write about. It puts us on the side of the people, who provide information to us — and all media — without expecting that it will be used for something other than newsgathering.
If we’re so quick to hand over information to the police, without regard for the ethics of doing so, how can we expect the public to trust us with the information they give us in the future? We don’t want to lose that trust.
I found it interesting that William Dean Singleton’s MediaNews Group followed this news story in its San Joaquin Herald with the headline, “Police upset over response to threat.” It contained more false statements made by the reporter than truth, quoted only one side of the story and editorialized about the part the Tracy Press played in the “lost investigation time.”
MediaNews owns or controls almost every daily newspaper in the greater Bay Area, except the Tracy Press and the San Francisco Chronicle, the latter of which is owned by media giant Hearst Corp. Hearst and MediaNews’ attempt to consolidate in the last year was slapped down by an antitrust lawsuit, followed by a settlement agreement just this week.
I think it’s important for people to realize that the future of newspapers in the Bay Area under Singleton’s control isn’t just a monopoly situation. Under MediaNews, newspapers are becoming more the mouthpiece of government than the communities they serve. They have little regard for the rights of the people and the press and the laws that protect them.
Sadly, the California Shield Law has little future unless it is exercised.
Cheri Matthews, editor of the Tracy Press, can be reached by phone (830-4201) e-mail (cherim@tracypress.com) or blog (www.editor-matthews.blogspot.com).
"The people of this state do not yield their sovereignty to the
agencies which serve them. The people, in delegating authority, do not give
their public servants the right to decide what is good for the people to know
and what is not good for them to know. The people insist they may retain control
over the instruments they have created."
Here’s to open government — and a little poetryThe Tracy Press has raised some eyebrows over its efforts to shed the light on Councilwoman Suzanne Tucker’s e-mails to the Lawrence Livermore National Laboratory about a proposed bio-lab and open-air explosions — something she and the city have refused to provide.
First we asked nicely, with an e-mail of our own. Then we asked officially, with a public records request. Then we asked again for disclosure, through a local attorney and a San Francisco attorney who specializes in First Amendment law.
You can read the nine-page letter sent this week to Deputy City Attorney Bill Sartor, below, on the next blog posting.
As we come to the end of Sunshine Week — an annual celebration of the nation’s freedom of information laws — it doesn’t hurt to be reminded of why open government, accountability and the public’s right to know matter so much. Having access to government information empowers the public and makes communities stronger.
Newspapers all over the country have called for more sunshine on the public’s business with laws that improve access to public records and allow the public to keep watch on government at all levels. We support those efforts in California and in the nation.
Locally, with your help, we’ll keep an eye on agencies and officials who spend public money — from council members and county supervisors to school board trustees — so that they will keep their decision-making open. And we’ll remind you, the people, of your rights, which are guaranteed by the First Amendment and California’s Brown Act, Public Records Act and Proposition 59, the state’s “right-to-know” provision in the Constitution.
And now for some poetry
While I’m passionate about First Amendment issues, I can also get fired up over good poetry — good being a keyword.
Poetry rarely finds a place in newspapers these days, but back in the day, it was a staple on the printed page. As U.S. Poet Laureate Ted Kooser said, “Readers enjoyed it. They would clip verses, stick them in their diaries, enclose them in letters. They even took time to memorize some of the poems they discovered.”
Poetry, Kooser said, is a perennial expression of our emotional, spiritual and intellectual lives.
And yet, we have so little time for it.
Starting today, we’ll offer a poem a week on our Voice pages, compliments of Kooser and a project called American Life in Poetry — Reintroducing Poetry to American’s Newspapers. The project is supported by The Poetry Foundation, an independent literary organization; and by the University of Nebraska and Library of Congress.
Kooser, also a Pulitzer Prize-winning writer, chooses the poems and writes a brief introduction with each. The poems are short and packed with simple truths that readers can understand and appreciate.
I hope you find them as insightful as I do.
Cheri Matthews, editor of the Tracy Press, is a member of the American Society of Newspaper Editors and California Newspaper Publishers Association. She can be reached by phone (830-4201) e-mail (cherim@tracypress.com) or blog (www.editor-matthews.blogspot.com).
Bill Sartor
Deputy City Attorney
City of Tracy
325 East Tenth Street, P.O.Box 419
Tracy, CA 95378-0419
Re: Public Records Request by Tracy Press of January 9, 2007
Dear Mr. Sartor:
Karl Olson, of Levy Ram & Olson, and I have been retained by the Tracy Press to obtain the writings of Council member Suzanne Tucker consisting of her e-mails. By letter of January 18, 2007 the City indicated its position that Council Member Tucker’s communications by her private e-mail address are in her capacity as a private citizen and not as a council member, and therefore exempt from disclosure. Karl Olson and I have been retained to obtain these records and establish that the City’s position is legally incorrect. It is my hope that this letter will persuade the City that its position cannot be legally sustained and attempting to defend that position in litigation that will be filed will result in the needless expenditure of taxpayer money in defense of a position which violates the California Constitution and is adverse to the public’s best interest.
The Public Records Act could not be more clear: “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Government Code Section 6250) The Public Records Act was enacted in 1968 “to safeguard the accountability of government to the public, for secrecy is antithetical to a democratic system of ‘government of the people, by the people (and) for the people.’” (San Gabriel Tribune v. Superior Court (1983) 143 Cal. App. 3d 762, 772.) The Public Records Act ‘“was enacted against a ‘background of legislative inpatiency with secrecy in government…” The Legislature had long been attempting to “formulate a workable means of minimizing secrecy in government.””’ (CBS, Inc. vs. Block (1986) 42 Cal.3d 646, 651.) These same principles are enshrined in Article 1, section 3(b) of the California Constitution, which was placed in the Constitution when voters passed Proposition 59 (with an 83% majority) in 2004. Article I, section 3(b) give the public a constitutional right to public records. Article 1, section 3(b)(1) provides: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials shall be open to public scrutiny.”
With the above basic principles in mind, but discussing the legal issues specific to Council member Tucker’s refusal to provide any writings, I want to review the information we have. The Tracy Press has obtained records from the Department of Energy and National Nuclear Security Administration in response to a request by the Tracy Press, and records from the City of Tracy in Response to a Request by Carole Dominquez. What follows is a brief summary of these documents relative to Council member Tucker’s activities and written communications. First, it needs to be noted that all communications by Council member Tucker are from the same e-mail address: sstucker@comcast.net. For brevity I will be referring to Council member Tucker as “Tucker”. No disrespect is intended.
The City has turned over written communications from its consultant, but none from Council member Tucker that were not copied to or sent directly to the consultant and therefore in the consultant’s possession. So we have been provided only with what the City could get from its consultant and what the Department of Energy would provide, but Council Member Tucker has refused to provide any written communications to TT&B, its members, other council members, City staff or even LLNL. It is therefore the City’s position that all the following e-mails would be protected from disclosure by Council Member Tucker. In fact, she refused to disclose them but LLNL did.
September 7, 2006 at 5:48 p.m.: “Suzanne Tucker, Tracy City Council” e-mails Stockton Record editorial to Steve Wampler of LLNL and asks “have the BSL4 folks talked to the Stockton Record….they wrote this opinion on Friday, August 18, 2006.
September 8, 2006 @ 8:10 a.m.: Steve Wampler of LLNL sends Tucker “Long promised, finally delivered—Press release about the development of the foot-and-mouth assay”. (Department of Energy Records)
September 11, 2006 @ 10:06 a.m.: Steve Wampler of LLNL forwards to Tucker an article from the East Bay Express on the LLNL bio-lab. (Department of Energy Records)
September 18, 2006 @ 1:28 p.m.: Tucker e-mails to Steve Wampler Sarvey’s resolution opposing bio-lab.
September 19, 2006: Tracy Press does editorial urging Council to take a position on Bio-lab.
September 19, 2006 @ 8:07 a.m.: Tucker, her “organization” named as “Tracy City Council Member” sends Steve Wampler of LLNL a Tracy Press article on the bio-lab.
September 19, 2006 @ 10:32 a.m.: Tucker forwards Tracy Press editorial to Steve Wampler at LLNL saying “it sounds like they want us to take a position…have you met with those folks…” (Department of Energy Records)
September 19, 2006 @ 11:13 a.m.: Steve Wampler of LLNL e-mails Tucker that Susan Houghton, Public Relations for LLNL contacted the Tracy Press and is trying to set up a meeting. (Department of Energy Records)
September 19, 2006: The City council refers the bio-lab issue to TT&B.
September 20, 2006 @ 11:15 a.m.: Tucker e-mails Steve Wampler of LLNL re “drama last night” and referral to TT&B and attaches Tracy Press article.
September 20, 2006 @2:37 p.m.: Steve Wampler of LLNL e-mails Tucker that “referral ideal sounds excellent to me”. (Department of Energy Records)
September 20, 2006 @ 10:08 pm Tucker e-mails 12 members of TT&B with a press release by LLNL rated as “important” that was provided by Steve Wampler of LLNL.
September 20, 2006 @ 10:25 p.m. Tucker again e-mails 12 members of TT&B with more information from the “Homeland Security Website”.
September 20, 2006 @ 10:31 p.m. Tucker again e-mails 12 members of TT&B and copies Dan Hobbs with the e-mail concerning “Proposed Sites for the National Bio and Agro-Defense Facility” with web site information and attachments.
September 20, 2006 @ 10:39 p.m. Tucker again e-mails 12 members of TT&B with more information with Press Release attachments concerning the “next round of cuts” for the bio-lab selection.
September 20, 2006 @ 10:43 p.m. Tucker again e-mails 12 members of TT&B with a “Fact Sheet” from DHS concerning the bio-lab.
September 20, 2006 @ 10:47 p.m. Tucker again e-mails 12 members of TT&B concerning the BSL-4 timeline and attachments “NBAF Timeline”.
September 20, 2006 @ 11:08 p.m. Tucker again e-mails 12 members of TT&B about how “Community resistance can swing decisions...” concerning the bio-lab.
September 21, 2006 @ 8:01 a.m. Tucker e-mails 12 member of TT&B with “Frequently Asked Questions about Biodefense”.
September 21, 2006 @ 8:03 a.m. Tucker e-mails 12 member of TT&B with “What the community in Kentucky is saying about the BSL-4 application there…”.
September 21, 2006 @ 8:04 a.m. Tucker e-mails 12 members of TT&B with “..a good 2004 article from the NY Times on general info about Biolabs…”.
September 21, 2006 @ 8:11 a.m. Tucker e-mails 12 members of TT&B with an article from the Boston Globe regarding a bio-lab there.
September 21, 2006 @ 9:58 a.m.: TT&B Consultant Boyd e-mails TT&B members, city staff and Tucker about the Bio-lab referral and the Special TT&B meeting set for October 4.
September 21, 2006 @ 10:27 a.m.: TT&B Consultant Boyd e-mails TT&B, staff and Tucker with link regarding BSL-4 research facility at Site 300.
September 21, 2006 @ 12:03 p.m.: Julie Yuan-Miu e-mails Consultant Boyd, TT&B members, the City Manager and Victoria Caldeira concerning handouts about the BSL-4 facility.
September 22, 2006: Consultant Boyd e-mails TT&B, Tucker and the School District Superintendent to verify the use of the conference room for the special TT&B meeting.
September 23, 2006 @ 8:20 a.m.: Tucker forwards Tracy Press article to TT&B members and the Mayor.
September 25, 2006 @10:22 a.m.: TT&B member John Palmer from Souza Realty and Development e-mails TT&B and Tucker that the Director of Public Affairs of LLNL will attend the October 4, 2006 TT&B meeting.
September 25, 2006 @12:29 p.m.: The City Clerk e-mails current e-mail addresses to TT&B member to Tucker and other members of TT&B.
September 25, 2006 @12:41 p.m.: Tucker e-mails the City Clerk with copies to the TT&B consultant, Assistant City Manager and Director of Parks and Recreation that certain persons need to be removed from TT&B membership notice list.
September 25, 2006 @ 4:42 p.m.: City Clerk e-mails Tucker an assistant to the City Manager with copy to another Assistant to the City Manager and the Director of Parks and Recreation that some person are left on the TT&B mailing list because they want to be informed.
October 20, 2006: Tucker e-mails TT&B members about community group pullourweeds.com.
October 2, 2006 at 5:23 p.m.: Tucker e-mails TT&B to forward Tracy Press Article on bio-lab.
October 2, 2006 @ 9:53 p.m.: TT&B Consultant e-mails members, City Manager, Assistant City Managers, Director of Parks and Recreation, the City Clerk and Tucker with a flyer for the October 18, 2006.
October 3, 2006 @ 10:43 p.m.: Brian Green, Chairman of TT&B e-mails to TT&B members, School District Superintendent, City Manager, Parks & Recreation director and Tucker an article for the Tracy Press Voice on the bio-lab.
October 19, 2006 @ 10:06 a.m.: Assistance City Manager e-mails TT&B members and Tucker with information regarding challenging an ordinance.
October 22, 2006 @ 11:06 p.m.: Consultant to TT&B e-mails City Manager, Assistant City Manager, TT&B members and Tucker with a draft agenda for November 15 Forum.
October 23, 2006 at 11:52 p.m.: TT&B Consultant e-mails Houghton of LLNL re agenda and format of November forum.
October 24, 2006 @ 4:08 p.m.: Houghton of LLNL e-mails TT&B Consultant with concerns about forum and copies John Palmer of Souza Realty & Development and Assistant City Manager. (Department of Energy Records)
October 24, 2006 at 4:19 p.m.: Houghton of LLNL forwards prior e-mail to Tucker saying “I don’t know if you can affect change on this, but we are rethinking our participation.”
October 24, 2006 @ 4:40 p.m.: Susan Houghton of LLNL e-mails Tucker that she hopes the session can be modified, and that the consultant is ‘steering this into a negative direction..” Houghton threatens to pull out. (Department of Energy Records)
October 24, 2006 @ 4:52 p.m.: Tucker responds to Houghton of LLNL e-mail saying that “I expressed the same concern….” and that she would follow up with the Assistant City Manager and Mayor.
November 5, 2006 @ 10:44 p.m.: Consultant to TT&B e-mails City Manager, Assistant City Manager, TT&B members and Tucker with flyer for November 15 Forum.
November 17, 2006 @ 7:02 a.m.: TT&B Consultant e-mails TT&B member re forum.
December 19, 2006 @ 9:41 a.m.: TT&B Consultant e-mails TT&B members, some city staff, and Tucker about new web site.
December 21, 2006 @ 9:32 a.m.: Tucker e-mails Steve Wampler of LLNL that “there was some interesting discussion at TT&B last night…”
December 21, 2006 @ 12:23 p.m.: Tucker e-mails Steve Wampler of LLNL that “I talked to John Upton a few minutes ago…he is doing a follow up on the TT&P discussion.”
December 21, 2006 @ 4:19 p.m.: City Parks and Recreation invites TT&B members, City Staff, City Manager and Tucker to Mayor’s Youth Support Network meeting.
December 21, 2006 @ 5:05 p.m.: Tucker forwards to Steve Wampler of LLNL document produced by Bob Sarvey for TT&B. (Department of Energy Records)
December 21, 2006 @ 6:28 p.m.: e-mail from Tracy Press to all council members making Public Records request for all records to or from LLNL. This e-mail may have been blind copied to some unidentified person at LLNL as no LLNL recipient is identified. (Department of Energy Records)
December 22, 2006 @ 8:31 a.m.: Tucker forwards Tracy Press records request to Joan Feller and unknown person at LLNL. (Department of Energy Records)
December 22, 2006 @ 9:52 a.m.: TT&B Consultant e-mails members re Mayor’s Youth Support Network.
December 28, 2006 @ 9:30 a.m.: Tucker requests City Clerk send her minutes from City Council meeting where the bio-lab issue was referred to TT&B.
December 29, 2006 @ 2:29 p.m.: Tucker e-mails John Palmer of Souza Realty and Development, John Bazinett and Brian Green of TT&B and the consultant for TT&B discouraging TT&B from making any recommendation.
January 5, 2007 @ 10:35 a.m.: TT&B Consultant e-mails agenda for January meeting to TT&B, city staff and Tucker.
January 9, 2007 @ 9:08 a.m.: Steve Wampler of LLNL forwards to Tucker Tracy Press letter to editors favorable to Ives and LLNL bio-lab. (Department of Energy Records)
January 11, 2007 @ 7:42 a.m.: Tucker, with caption on e-mail “Suzanne Tucker, Tracy City Council” e-mails Joan Feller Tracy Press article re LLNL Site 300. This e-mail may have been blind copied to some unidentified person at LLNL as no LLNL recipient is identified. (Department of Energy Records)
January 12, 2007: Carole Dominquez submits a Public Records Act Request requesting “any and all communications between Councilwoman Suzanne Tucker and any and all TT&B committee members”
January 12, 2007: Tucker e-mails the City Clerk indicating all her writings, even those to the TT&B Committee members, are protected by the California Public Record Act.
January 15, 2007 @ 8:16 a.m.: John Palmer of Souza Realty and Development e-mails TT&B re Public Affairs for LLNL. Second page is missing.
January 15, 2007 @ 8:23 a.m.: Consultant for TT&B e-mails John Palmer of Souza Realty and Development and TT&B re EIS schedule.
January 15, 2007 @ 8:27 a.m.: Prior e-mail is forwarded to School District, Tucker and City Manager.
January 16, 2007 @ 6:55 p.m.: TT&B Consultant e-mails TT&B and Tucker re Site 300 tour.
January 16, 2007: Consultant Boyd e-mails the City Clerk concerning “tucker emails” attaching “Mayor’s Youth Support Network, Public forum, Public Forum: get the word out!; FW: Update of NBAF”
With the above history, I want to address the arguments that you make in your January 18, 2007 letter.
Definition of Public Record:
In your letter of January 18, 2007 you take the position that council person Tucker was acting in her capacity as a private citizen. The e-mails showing her direction of TT&B, description of capacity as “Tracy City Council”, actions in using e-mails to advocate for the bio-lab and many other factors make this position unreasonable. She was clearly acting in her capacity as a member of the City Council on City business.
The Public Records Act defines the term “public record” very broadly: “public records’ includes any writing containing information relating to the conduct of the people’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics.” (Government Code Section 6252(e).) The Attorney General has defined “public record” even more broadly: the definition of public record “is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any form of record–keeping instrument as it is developed. Only purely personal information unrelated to ‘the conduct of the public’s business’” is exempt from the definition of “public records,” such as “the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.’” (San Gabriel, supra, 143 Cal. App.3d at 774.) So if Council member Tucker had e-mailed Steve Wampler on December 21, 2006 her grocery list so he could pick up some groceries for her, rather than just saying she was going shopping, maybe the grocery list might be private, but the rest of the e-mail would still be public record. However since Council Member Tucker claims a blanket privilege not to disclose any e-mails, we need not address that level of detail.
Emails, Notes, Drafts and Memoranda that are Not Retained:
The City is taking a different position as to e-mails by Council Member Tucker than it does as to all other requests. LLNL and the City have both produced e-mails in response to Public Records Requests with no argument that e-mails need not be disclosed. You are taking the position, however, that e-mails by Council Member Tucker are completely exempt from disclosure. Which is the Tracy policy?
These e-mails are much more than just a telephone message or face to face communication. Frequently documents, schedules, plans and detailed discussions occur. The produced e-mails establish these facts.
In litigation the City will have to explain why e-mails are retained and disclosed, except as to Council Member Tucker.
Deliberative Process Privilege Exemption from Disclosure:
The e-mails show this claim of privilege, which was overruled by the 2004 adoption of Proposition 59 (Cal. Const., art. I, section 3(b)), is also badly taken. The ballot argument in support of Proposition 59 specifically stated that it was intended to “allow the public to see and understand the deliberative process through which decisions are made.”
Even if there were some merit to a claim of Deliberative Process Privilege, the e-mails reveal no deliberation, but instead manipulation of TT&B and close collaboration with LLNL personnel to further the bio-lab. Council Member Tucker has refused to disclose e-mails with LLNL, TT&B, City Staff and third parties that cannot be reasonably argued to have anything to do with deliberation even if such a privilege existed post Proposition 59.
There has been no effort to determine what documents might be subject to this privilege, instead Council Member Tucker has claimed all her e-mail writings are exempt. That is the position the City will have to defend in litigation.
California Constitution:
Article 1, Section 3 of the California Constitution, enacted by Proposition 59, states in part as follows;
b) (1) The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.
(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
Council member Tucker’s e-mails are certainly writings. She was acting as a public official. It does not matter if she uses her personal e-mail or an old manual typewriter. How she creates the writing, where she records it, or how she transmits the writing does not exempt it from the California constitution. In fact, this right of the public is to be broadly construed against Council Member Tucker’s position. Your position is that because Council Member Tucker uses her own personal e-mail address and computer to type and transmit the writings, that they are exempt from the California Public Records Act and the California Constitution. I do not think a court will sustain that position.
In conclusion, I would hope the City of Tracy would not choose to draw the line in the sand to defend Council Member Tucker’s right to conceal all her e-mails. The agency seeking to withhold information has “the burden of demonstrating a need for non-disclosure.” (CBS, supra, 42 Cal.3d at 651-52; New York Times Co. vs. Superior Court (1990) 218 Cal.App.3d 1579, 1584; Braun v. City of Taft (1984) 154 Cal.App.3d 332, 345.) Exemptions from disclosure “are construed narrowly to ensure maximum disclosure of the conduct of governmental operations.” (New York Times, supra, 218 Cal.App.3d at 1585; San Gabriel Tribune, supra, 143 Cal.App.3d at 772-73. Article I, section 3(b)(2) of the California Constitution-added by adoption of Proposition 59 in 2004-gives the above cases constitutional stature. It requires that a statute or other authority “shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”
We are not satisfied to receive only those communications to third parties like the Department of Defense, or those select e-mails in the possession of consultants retained by the City who have complied with the law and disclosed what they have received. We are entitled to receive ALL e-mails between any of the current council members, including Council member Tucker, former Mayor Dan Bilbrey, City Manager Dan Hobbs, and LLNL since January 1, 2006 regarding the proposed bio-agent laboratory as well as any test bombing the Lab will do at Site 300. If you will indicate that Council Member Tucker will comply, we will not need to file any action. If the City’s position remains that Council Member Tucker is somehow solely exempt from the law, we will file an action to compel her and the City to produce the documents. Please let me know within a few days of the March 20, 2007 Council meeting the City’s response.
Very truly yours,
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MARK V. CONNOLLY
