UKIAH, 3/18/23 — Mendocino County was recognized as one of America’s “worst in government transparency” last week by the Electronic Frontier Foundation (EFF) and investigative news platform Muckrock, which awarded a “Foilie” to county officials in honor of Ordinance No. 4507 — local legislation passed last year that introduced unlawful fees to access public records in clear violation of state law. The dubious award puts the Board of Supervisors in such questionable company as the FBI, NSA, Cyber Ninjas and U.S. Immigration and Customs Enforcement (ICE).
“The Foilies regularly recounts outrageous public records fees that seem clearly aimed at discouraging specific records requests. But those are usually one-off efforts aimed at specific requests. This award to officials in Mendocino County, Calif., is based on their creation of a fee system that appears designed to discourage everyone from requesting public records,” EFF staffers wrote.
The California Public Records Act authorizes government agencies to pass on the direct cost of record reproduction to requesters of public records, which includes the government’s copy or printing costs but nothing else. Ord. 4507, however, authorized the county to bill records requesters for staff time spent searching for, reviewing and possibly redacting records prior to release.
“Mendocino County’s ordinance is on shaky legal ground. The California Public Records Act does not give state and local government agencies the authority to assess their own search fees, review fees, or even fees to redact records. The law only allows agencies to charge the public what it costs to make copies of the records they seek,” writes the EFF.
Attorneys for The First Amendment Coalition (FAC) notified the Mendocino County Board of Supervisors that Ord. 4507 is unlawful in advance of its passage, and an open letter urging the board to reconsider was cosigned by almost every media outlet in the region. But on the advice of County Counsel Christian Curtis the board passed the ordinance in a unanimous vote.
Six months in
“It’s one of the votes that I really regret making,” Haschak said.
Third District Supervisor John Haschak recently found out that officials from other government agencies share the FAC’s legal opinion, and has since had second thoughts. Ord. 4507 went into effect in August, 2022, and a staff report on its implementation was placed on the consent calendar agenda for a regular meeting of the board on Feb.
8 7. Haschak had it “pulled” for further discussion, saying he no longer believes these fees to be on “solid legal ground.”
According to Haschak, officials from Orange County informed him that counties are legally authorized to recover direct costs of document reproduction — but not staff time — during a presentation to the California State Association of Counties (CSAC).
“Charging when we shouldn’t be charging puts us at a risk [of a lawsuit] I think, so I would like to have the board reconsider this ordinance because it could be detrimental to us in the long run,” Haschak said. His motion died later in the meeting for lack of a second, however.
“Obviously, we’re on the forefront of this issue. No other county is doing this. And if we lose, then we’re liable for all the [legal] fees the people suing us generate … So I’m worried about that. There are times when maybe Mendocino County wants to be on the forefront. I don’t think this is that issue,” Haschak said.
Haschak also expressed concerns about causing a “chilling effect” on transparency efforts, and those fears were confirmed in a staff report stating that the average number of requests received per day dropped from 4.5 in early 2022 to just 3.5 — which represents a 22% reduction if accurate. The report also indicates that 91 requests “have likely been abandoned” by the requester.
“That’s what courts will look at,” Haschak said.
“When there’s a new pothole people call me and yell at me, and I don’t hear anybody yelling about public records requests,” said 5th District Supervisor Ted Williams. “If there’s anybody concerned they can show up at our meeting.”
During the public comment period that immediately followed their discussion, however, Ord. 4507 was criticized by five community members including, Michael Katz with the Mendocino Cannabis Alliance, David Drell of the Willits Environmental Center, and The Mendocino Voice’s Publisher Kate Maxwell.
“County counsel is framing this as a success because requests are going down and because people are being stymied,” Maxwell said. “I think that is something that is counter to government transparency and is deeply concerning.”
A full accounting of public comments received by the board regarding Ord. 4507 has been requested from the county to provide additional context on Williams’ comment. Constituents can reach the board at (707) 463-4221 or [email protected].
The Voice offered all five supervisors, as well as Mendocino County CEO Darcie Antle and County Counsel Curtis, an opportunity to comment on their Foilie. Haschak thanked The Voice for covering this issue, but declined to comment on the Foilie. Board Chair Glenn McGourty and Vice-chair Maureen Mulheren reached out separately with offers to streamline specific public records requests, but also declined to comment on the award.
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- Open letter to Mendocino County supervisors: new public records fees will cost more than they save
- Letter from the publisher: Mendocino County wins “worst” for government transparency (opinion)