Sunshine Week, Part 1

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,

__________________

MARK V. CONNOLLY