Title
Hearing on Sunshine Ordinance Complaint Concerning Alleged Failure to Respond Timely to Public Records Act Request
Body
To: Honorable Members of the Open Government Commission
From: John D. Lê, Assistant City Attorney
Re: Hearing on Sunshine Ordinance Complaint Filed May 29, 2019
Background
This complaint concerns an alleged violation of the Alameda Municipal Code (AMC), section 2-92 (PUBLIC INFORMATION) by complainant Rasheed Shabazz (Complainant), a current member of the Open Government Commission.
The complaint alleges the following facts:
• On January 22, 2019, Complainant submits records request to the Chief of Police and the City Clerk via email. The Chief of Police responded the same day, forwarding the request to the City Attorney’s Office.
• On March 22, 2019 and April 30, 2019, Complainant sent follow-up emails to the City Attorney’s Office concerning the request.
On May 29, 2019, Complainant visited the City Attorney’s Office in person. Later, he filed the current complaint with the Clerk’s Office. Complainant sought records governed by California Penal Code section 832.7, as amended by SB 1421 (e.g., incidents involving the discharge of a firearm at a person, etc.). That same day, after the current complaint was filed, Complainant received an email response from Alan Cohen, Chief Litigation Counsel of the Alameda City Attorney’s Office stating no responsive records were available (“[T]here are no responsive records to your request during the period encompassing January 1, 2014 to the present…”). See Exhibit 1.
On June 10, 2019 (after the complaint was filed, but before the hearing was set), the City Attorney’s Office reached out via email to the Complainant to informally resolve the matter in light of the facts, but did not receive a response. Accordingly, the matter was set for hearing.
Discussion
In relevant part, subdivision (c) of section 2-93.2 (Responsibilities of Staff) of the Sunshine Ordinance provides:
Every “Custodian of Records” shall, as soon as possible, and within ten (10) days following receipt of a request for a Public Record, comply with such request. In unusual circumstances, the time limit prescribed by this subsection may be extended by written notice by the Custodian of Records to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched provided that no notice shall specify a date that would result in an extension for more than fourteen (14) days.
As similar provision exists in subdivision (a) of section 2-92.9 (Disclosure Requests) of the Sunshine Ordinance.
In an email, Alan Cohen, Chief Litigation Counsel of the Alameda City Attorney’s Office attempted to the explain the reason for the delay, including a mistaken believe that a formal response had already been dispatched (“I was under the apparently mistaken impression that a formal written response to your email was sent out in early February…”), that the internal system for tracking records request incorrectly indicated a response email was sent to the Complainant (“our tracking system indicated that we had formally responded”), and that the City Attorney’s Office could not locate an email from Complainant indicating he had not received a response from the City Attorney’s Office (“[W]e also could not locate any emails from you to our office indicating that you had not received a response.“). See Exhibit 1.
The parties do not dispute that the response from the City Attorney’s Office was not timely-i.e., was produced outside of the ten (10) days required for a response.
The principal remedy is an order to cure or correct. For violations of this nature, the Open Government Commission may also issue a fine but only for “subsequent similar violations”. See AMC, subd. (b) of section 2-93.8 (Penalties). As there is no evidence in the record of the existence of a subsequent similar violation, and a responsive email has already been produced to the Complainant, the Commission may well find a technical violation but order no remedy.
Recommendation
Although finding a violation is not recommended, given the circumstances, the Commission may well find that there was a technical violation of sections 2-92.2(c) of the Alameda Municipal Code. Nevertheless, since the violation has been cured, no remedy is recommended. Accordingly, if the Commission is inclined to find a violation, it is recommended that it be SUSTAINED without further remedy.
(It is further recommended that Member Shabazz recuse himself as a member of the Open Government Commission, even if he declines to represent himself at the proceeding.)
Respectfully submitted,
John D. Lê, Assistant City Attorney
Attachment:
1. Draft Commission Decision